NHS funding for long term care HC 399 - gov.uk...Continuing Care: NHS and Local CouncilsÕ responsibilities 28 June 2001 10 Full text of investigation reports Annex B E.208/99-00 Dorset

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NHS funding for long term care

2nd REPORT – SESSION 2002-2003

Presented to Parliament Pursuant to Section 14(4)Of the Health Service Commissioners Act 1993

Ordered byThe House of Commons

To be printed on13 February 2003

HC 399 London : The Stationery Office


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ii February 2003 • NHS Funding for Long Term Care • Contents


Page

Foreword

Foreword by Health Service Ombudsman iii

Introduction 1

Background Legal and policy framework 1

Issues arising from complaints 4Involvement and information 4Developing eligibility criteria in line with the 1995 guidance 4Taking the Coughlan judgment into account 5Recommendations 6

The National Framework for NHS-Funded care 6Recommendation 7Assessing against criteria 7Recommendation 8

Conclusion and recommendations 8

Annex A Extracts from HSC 2001/015, LAC (2001)18Continuing Care: NHS and Local Councils’ responsibilities28 June 2001 10

Full text of investigation reportsAnnex B E.208/99-00 Dorset Health Authority and Dorset

HealthCare NHS Trust 11Annex C E.420/00-01 Wigan and Bolton Health Authority and

Bolton Hospitals NHS Trust 24Annex D E.814/00-01 Berkshire Health Authority 35Annex E E.1626/01-02 Birmingham Health Authority 49

Contents

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Foreword • NHS Funding for Long Term Care • February 2003 iii


ForewordNHS funding for long term care of older and disabled people

Over the last 18 months my office has been investigating a number of complaints about arrangements for long term NHS care (often referred to as continuing care) for older and disabled people. Similar concerns have been raised by many of the complainants, particularlyabout the local criteria used by health authorities between 1996 and 2001 to decide whetherpeople were eligible for NHS funding for care in nursing homes. Four of the investigations, involving four different health authorities, are now complete. The complaints concerned werelargely justified. Authorities were using over-restrictive local criteria which were not properly inline with Department of Health guidance nor with a crucial judgment by the Court of Appeal in1999 (the Coughlan judgment). The effect was that in at least one case a patient had to pay fortheir own care when the NHS should have paid for it. The complaints I have seen also raise otherconcerns detailed in the report, about how the system for assessing eligibility for NHS fundinghas been working.

Although I have more similar investigations underway, the evidence from the first four suggeststhat it is in the public interest for me to publish the results of our work so far, by laying this reportbefore Parliament in accordance with Section 14(4)(b) of the Health Service Commissioners Act1993.

I do that for two reasons. First, because although as Health Service Commissioner I cannot investigate the actions of the Department of Health, in my view weaknesses in the Department'sguidance have contributed to the difficulties. Health authorities and trusts will need further support and very clear guidance from the Department both to avoid similar problems in the futureand to ensure that previous problems are properly identified and remedied. I look to theDepartment to provide that.

Secondly, I am concerned that all those who have suffered injustice from such failings shouldobtain redress. In the investigations completed, we have asked authorities to identify any otherpatients who may have been adversely affected by the over-restrictive criteria and to remedy anyinjustice caused. However identifying such patients is not easy, and a greater public awarenessof the issue may assist in that. Also the findings of the initial investigations make me wonder ifthere were similar problems in other areas of the country. I hope that all NHS bodies concernedwith such matters will review whether the criteria used since 1996 conformed to national guidance and, if they conclude that they did not, will act now to remedy any injustice caused.

Ann AbrahamHealth Service Commissioner for England

February 2003

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Annex E Case No. E.1626/01-02 • NHS Funding for Long Term Care • February 2003 57

arrangements for Mrs R's placement were not handled as sensitively as they could have been. Itsays it is 'not sure of the value' of apologising aboutthe unreasonableness of the criteria, since it is notconvinced that the criteria and their application led toany injustice to Mrs S.

34. I therefore ask it to reconsider both theapproach it is taking to a retrospective review and thefullness of the apology.

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56 February 2003 • NHS Funding for Long Term Care • Annex E Case No. E.1626/01-02

5 October - The Secretary of the Health Authorityinformed Mrs S of this decision stating:

'It is the unanimous view … of all persons concerned… that [Mrs R] does not meet the criteria for NHSContinuing Care.

'It is the view of the [Health] Authority, having consulted the Independent Chairman, that the properprocess has been followed in arriving at this conclusion. The [Health] Authority has thereforedecided not to proceed with the continuing carereview panel.'

The new Health Authority's response tothe statement of complaint29. On 19 April 2002 in his formal response tothe statement of complaint the Chief Executive of thenew Health Authority wrote:

'… In accordance with HSG (95)39 Paragraph 19 theHealth Authority does have the right to decide not toconvene a Panel in those cases where the patient fallswell outside the eligibility criteria. Before taking sucha decision, the [Health] Authority sought advice fromthe Independent Chairman of the Continuing CareReview Panel …

'In considering the request, the Chairman …[checked] that [the] proper procedures have been followed in reaching that decision about the need forMrs R to receive NHS Continuing in-patient care, andto ensure that the Health Authority's eligibility criteriahad been properly and consistently applied.

'… [The Chairman] … decided not to convene aPanel...

'Mrs S was informed of the decision on 5 October andwas informed that if she was not satisfied, she couldmake a complaint through the NHS ComplaintsSystem.'

Findings (b)30. I turn next to the complaint that the reviewprocess was not properly applied. HSG (95)39 clearlystates that although the Health Authority does havethe right not to convene a panel, this should be confined solely to those cases where the patient fallswell outside the criteria. I interpret this to refer tothose cases where the needs of the patient were suchthat there could be no doubt whatsoever that the eligibility criteria were not met. However when writing to explain the decision that no panel should beheld the Health Authority did not suggest that Mrs Rfell well outside the criteria, only that she did not

meet them. I do consider that this was not an adequate reason for a refusal to hold a panel. It is notwithin the power of a panel to consider the criteria themselves: so, given the over-restrictive criteriabeing applied, Mrs R might still reasonably have beenjudged to be well outside the criteria and been denieda panel or would probably not have received fundingeven if a panel had been held. Therefore although thereview procedures were not properly followed, that initself probably did not affect the funding decision. Themain problem lay with the criteria themselves and thatwas not a matter the review procedure was designedto address. I uphold the complaint only to the extentthat inadequate reasons were given for refusal to holda panel.

Conclusions31. I have set out my findings in paragraphs 20-25 and 30. The new Health Authority has agreed tomake sure that the new criteria used in its area aremore precise and that they will deal more explicitlywith compliance with the Coughlan judgment. It hasagreed that, with the Birmingham PCTs, it will reviewthe criteria in use since 1996, by seeking further legaladvice as to their compliance with the guidance andthe Coughlan judgment. It has also said that it willreview against the new continuing care criteria thosepatients currently in nursing homes and funded in partor whole by social services. If this exercise identifiesanyone who might meet the criteria, they will arrangean assessment and appropriate funding. If they findthat there are 'considerable numbers' who meet thecriteria, they will undertake a larger retrospectiveexercise.

32. I am pleased that the new Health Authorityhas accepted most of my findings and agreed to someof the recommendations. However I am disappointedthat it is not prepared to adopt in full my recommendation about determining whether therewere any patients who have been wrongly refusedfunding since 1996. What it proposes goes a considerable way towards that, but does not involve aretrospective review, unless they find there are 'considerable numbers' of patients still alive who havesuffered an injustice. However the patients most atrisk of having suffered an injustice, by being wronglyjudged to be ineligible for NHS funding for their care,are those with the greatest health needs. They areprobably also the patients most likely to have diedduring the period.

33. The new Health Authority has asked me toconvey through my report - as I do - its apologies toMrs S that the criteria were worded in such a way thatthey could have been misinterpreted and that

• NHS Funding for Long Term Care • February 2003 1

Introduction1. I know that arrangements for funding long term care (also known as continuing care), particularly fordependent elderly people, are of general public concern. In the last 18 months my office has received andbegun considering 13 complaints about NHS funding for such care, to add to three already under investigation atthe start of that period. Many of the newer complaints have also raised concerns which required investigation.While each complaint is different, many raise similar issues. A pattern is emerging from the complaints I haveseen of NHS bodies struggling, and sometimes failing, to conform to the law and central guidance on this issue,resulting in actual or potential injustice arising to frail elderly people and their relatives. Therefore I think it isimportant for me to report on the issues arising from these complaints as soon as possible, even though severalof the investigations are not yet complete. The indications are that problems may be widespread. My hope isthat action will be taken to remedy the situation, not just in respect of complaints I have received and upheld,but more widely. This report includes the full text of the reports of the first four completed investigations.Nothing in this report should be read as implying that I have pre-judged the outcome of others: as always eachcomplaint will be considered on its own merits.

2. The people who have complained to me are not only concerned about what they see as the unfairnessof the system for funding care, but about substantial financial injustice when it was applied to them. This arisesbecause, if the NHS fully funds continuing care in a care home, the patient does not have to make anycontribution to the cost of that care. If not, the patient funds much of the care him or herself; or it is funded bylocal authority social services departments, with patients being expected to contribute according to their means.That can mean some patients having to use virtually all their accumulated life savings and capital from the saleof their home, to pay for care: whereas other patients who are judged eligible for full NHS funding for care in acare home make no financial contribution at all, regardless of their means. It is not surprising therefore thatthe decisions made by NHS organisations about eligibility for NHS funding arouse strong feelings.

Legal and policy framework3. The issue is not a new one for this office. Sir William Reid published reports on similar cases in 1994and 1996 (HC 157 and HC 504). The first of those reports was titled 'Failure to provide long term NHS care for abrain-damaged patient' and referred to what is often known as the Leeds case. Following that, in February1995, the Department of Health issued new guidance (HSG (95) 8) on NHS responsibilities for meetingcontinuing care needs, setting out a national framework within which health authorities were to develop theirown eligibility criteria for continuing care. Sir William Reid's report (titled 'Investigations of complaints aboutlong term NHS care') published in 1996 related to complaints that had arisen before then.

4. The Department of Health's 1995 guidance said that the NHS was responsible for arranging and fundinginpatient continuing care, on a short or long term basis, for people:

'…. where the complexity or intensity of their medical, nursing care or other care or the need for frequentnot easily predictable interventions requires the regular (in the majority of cases this might be weekly ormore frequent) supervision of a consultant, specialist nurse or other NHS member of the multidisciplinaryteam….


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of Health, I recommend that the new HealthAuthority seeks advice from the Midlands and EastHealth and Social Care Directorate. Following thisadvice and to avoid any further delay, I recommendthat the new Health Authority promptly sets out aclear plan for the implementation of its revisedcriteria for funding continuing care. Although the newHealth Authority said that the revision was intended toprovide clearer criteria for staff to use, if the criteriaare to be applied consistently (and for that to be clearto patients and carers), guidance for staff (also madeavailable to the public) on interpreting the criteria andassessing patients against them will also be needed.I recommend that the new Health Authorityproduce such guidance. I uphold the complaint.

Complaint (b): the review process wasnot properly applied

National guidance on Continuing CareReview Panels HSG (95)39 - Dischargefrom NHS Inpatient Care of People withContinuing Health and Social CareNeeds - 'Arrangements for ReviewingDecisions on Eligibility for NHSContinuing In-patient Care'26. In 1995, detailed guidance, HSG (95)39, wasissued to health authorities and trusts on dealing withapplications for review of decisions about eligibilityfor NHS continuing in-patient care. The review procedure did not apply where patients or familieswished to challenge the content rather than the application of the eligibility criteria. The guidanceincluded, as an appendix, a checklist of issues to beconsidered before referring a case to a review panel.It also included:

'4. The review procedure is intended as an additionalsafeguard for patients assessed as ready for discharge from NHS in-patient care who require ongoing continuing support from health and/or socialservices, and who consider that the health authority'seligibility criteria for NHS continuing in-patient care(whether in a hospital or in some other setting such asa nursing home) have not been correctly applied intheir case …

'19. The health authority does have the right to decidein any individual case not to convene a panel. It isexpected that such decisions will be confined to thosecases where the patient falls well outside the eligibility criteria, or where the case is very clearly notappropriate for the panel to consider …'

In June 2001, the Department of Health issued newguidance HSC 2001/015, which cancelled previousguidance including, HSG (95)39. However, the reviewprocess detailed in HSG (95)39, remained largelyunchanged.

Documentary evidenceThe Health Authority's Guidance onContinuing Care Review Panels27. The Health Authority's patient leaflet entitled'How to ask for a review if you think decisions madeabout you or your relative are wrong' states:

'… whether your case is reviewed will depend on thereason for your request. If you are challenging theprocedure that was followed or the fact that you arebeing denied continuing care even though you thinkyou comply with the criteria, your case will normallybe reviewed.

'… The panel will not review your case if you are challenging or complaining about:

• the criteria themselves

• the type or location of continuing health carewhich you have been offered;

• the care you have already received.'

Sequence of events28. I set out below the principal events and correspondence relevant to the matters investigated.

11 September 2001 - Mrs S wrote to the HealthAuthority requesting that the decision to refuse hermother funding for continued in-patient care bereviewed:

'… It is obvious that no-one has spent time with mymother or they would see how anxious she is and continually needs reassuring that she will be gettingout of hospital, where she has been for 3 months andat 91 years old she deserves care and consideration.She has substantial memory problems and not evenrecognises her own family frequently … [I] therefore,request an independent review panel to be arranged.'

An Independent Chairman reviewed the documentation and concluded that the process fordeciding whether Mrs R qualified for NHS-funded continuing care had been properly applied and that areview panel should not take place.

2 February 2003 • NHS Funding for Long Term Care •

'…. who require routinely the use of specialist health care equipment or treatments which require thesupervision of specialist NHS staff ….

'who have a rapidly degenerating or unstable condition which means that they will require specialist medicalor nursing supervision.'

The in-patient care might be provided in a hospital or in a nursing home.

5. The Department issued further guidance (EL(96)8), in February 1996. That referred to the danger ofeligibility criteria being over-restrictive and mentioned the risk of an over-reliance on the needs of a patient forspecialist medical opinion when determining eligibility for continuing care. It said that there would be a limitednumber of cases where the complexity or intensity of nursing or other clinical needs might mean that a patientwas eligible for continuing care even though they no longer required medical supervision.

6. In March 1999 a Royal Commission on Long Term Care reported. This had looked at a range of issuesconnected with funding of long term care for elderly people. It identified three principles behind its approach:

• Responsibility for provision now and in the future should be shared between the state and individuals -the aim was to find a decision affordable for both and one which people could understand and accept asfair and logical;

• Any new system of state support should be fair and equitable;

• Any new system of state support should be transparent in respect of the resources underpinning it, theentitlement of individuals under it and what it left to personal responsibility.

One of the Royal Commission's main recommendations was that the costs of long term care should be dividedbetween living costs, housing costs and personal care. Personal care should be available after assessment,according to need and paid for from general taxation: the rest should be subject to a co-payment according tomeans. The Commission defined personal care as the care needs, often intimate, which give rise to the majoradditional costs of frailty or disability associated with old age. It was to include support from skilledprofessionals.

7. The Government responded in July 2000. It did not accept the recommendation about personal care,but accepted an alternative proposal to make nursing care in nursing homes free to users, by providing NHSfunding (see paragraph 10).

8. Meanwhile, in July 1999, the Court of Appeal had given a crucial judgment (R v. North and East DevonHealth Authority ex parte Coughlan) relating to funding for continuing care. This considered the issue ofwhether nursing care for a chronically ill patient might lawfully be provided by a local authority as a socialservice (in which case the patient paid according to their means) or whether it was required by law to beprovided free of charge as part of the NHS. The judgment said that whether it was unlawful to transferresponsibility for the patient's general nursing care to the local authority depended, generally, on whether thenursing services were:

(i) Merely incidental or ancillary to the provision of the accommodation which a local authority is under aduty to provide; and

(ii) Of a nature which it could be expected that an authority whose primary responsibility is to providesocial services could be expected to provide.

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She continued to be refused funding from then untilDecember 2001 when she was discharged from hospital to a nursing home (where she died very soonafterwards). By this point, the Health Authority wereobliged to fund the registered nursing element of hernursing home care, following the implementation ofHSC 2001/17 in October 2001. At the time of her discharge to the nursing home the decision on fullfunding for NHS care continued to be based on theoriginal over-restrictive criteria dating from 1996.However the Health Authority had been expected, byOctober 2001, to have ensured that continuing NHScare policies complied with the revised guidance (HSC2001/015) which had been issued in June 2001, andby March 2002 they should have agreed new joint eligibility criteria for the respective responsibilities ofmeeting health and social care needs. Also fromOctober 2001 some of the concerns raised by theCoughlan judgment about the funding of nursing carewould not apply in quite the same way, as (followingHSC 2001/17 - paragraph 13) health authorities werefunding nursing care in homes for patients such asMrs R who would otherwise have had to pay for itthemselves. Although the deadline of March 2002 foragreeing joint eligibility criteria was postponed untilOctober 2002, in this case the Health Authority had notrevised their criteria since 1996, even in the light ofthe Coughlan case and the 1999 guidance. I criticise the Health Authority for that. I conclude thatthe Health Authority, in failing to revise their criteriaand assessing Mrs R only against their, over-restrictive, 1996 criteria, acted unreasonably.

22. I am also concerned that the draft of the neweligibility criteria as outlined by the new HealthAuthority, paragraph 18, might still be more restrictivethan the current guidance intends: though the way theguidance is drafted makes it difficult to be sure. Thedraft new Health Authority criteria requires a need for'daily' supervision or intervention by NHS staff, whereas the national guidance refers only to thatbeing needed 'regularly'.

23. How have the Health Authority's failingsaffected Mrs R and Mrs S? The Health Authority's criteria were certainly significantly more stringentthan could reasonably have been the case betweenApril 1996 and October 2001. It seems likely thereforethat some people who were entitled to NHS-fundedcontinuing care in the Birmingham area from June1996 were denied it. Had Mrs R been assessedagainst criteria which were in line with the then guidance and the Coughlan judgment, she might(though it is not possible to be certain) have beendeemed eligible for NHS funding for her nursing homecare. She might then have left hospital earlier in 2001

and continued to receive full funding for her nursinghome care until her death in December. However shedid in fact have full NHS funding for her care for virtually all of that period, as she was in hospital untila few days before her death. By the time she was discharged she was entitled to, and got, free nursingcare for the short period she survived after admissionto the home. I do not think therefore that there wasany major financial injustice to her estate.

24. However Mrs S complained that as a result ofthe decision not to fund in-patient continuing care, hermother missed the opportunity of an early transfer toa nursing home closer to her family, and remained inhospital unnecessarily. Nothing prevented Mrs R'sfamily from making arrangements to discharge her toa nursing home as soon as she was well enough.However that might have been at her own cost, and Ican understand why her family did not do that whilethey were still disputing the assessment and criteriaused for determining eligibility for NHS funding.Nevertheless, she could in my view have suffered aninjustice, in that had the use of reasonable criteria ledto her being considered eligible for funding, she probably would have moved to a nursing home closerto her family at a much earlier stage. Sadly there isnothing I can recommend now which could be done toremedy that situation. However I know that Mrs Swas also keen to make sure that others did not suffersimilarly. I too am concerned about that.

25. The organisation of the NHS has changedsince these events. Birmingham Health Authority nolonger exists. Responsibility for setting eligibility criteria now lies with the new Birmingham and TheBlack Country Health Authority, and the relevant budget for funding such care will be held by a PrimaryCare Trust (PCT). While I recognise that the newHealth Authority played no part in these events, I mustregard them as responsible for taking remedial action.I recommend that the new Health Authority should,with its associated PCT and local authority colleagues,review the eligibility criteria for funding continuingcare that have been in operation since April 1996to ensure that they were in line with the Coughlan judgment and other relevant guidance at that time. Ifurther recommend that the new Health Authorityshould, with its associated PCT and local authority colleagues, determine whether there were anypatients who were wrongly refused funding for continuing care from April 1996 onwards, identifythem and make the necessary arrangements for reimbursing the costs they incurred unnecessarily. Toensure that the revised continuing care policy and eligibility criteria to be used in the future appropriately reflect the intentions of the Department


9. In the light of that, in August 1999, the Department of Health issued guidance (HSC 1999/180) on actionrequired in response to the judgment. It said that health authorities should satisfy themselves that theircontinuing and community care policies and eligibility criteria and other relevant procedures were in line with thejudgment and existing guidance. Where health authorities revised their criteria, having involved and discussedthe outcome with Primary Care Groups, they should consider what action they needed to take to re-assess theeligibility of current service users against the revised criteria. The guidance said that the Government would bereviewing continuing care policy and guidance, with a view to issuing revised guidance later that same year.

10. In March 2001 the Department of Health issued a National Service Framework (NSF) for Older People.That referred to the provision of free nursing care in nursing homes, but did not include any guidance on NHSfunding for the full costs of continuing care for older people.

11. New guidance on continuing care was not issued until June 2001 (HSC 2001/015): nearly two yearsafter the 1999 guidance. It replaced the previous guidance. It referred to the Coughlan judgment, saying thateligibility criteria for NHS arranged and funded nursing services in nursing homes should cover the followingsituations:

• Where all the nursing service is the NHS's responsibility because someone's primary need is for healthcare rather than accommodation;

• Where responsibility can be shared between the NHS and the council because nursing needs in generalcan be the responsibility of the council but the NHS is responsible for meeting other health care requirements;

• Where the totality of the nursing service can be the responsibility of the local council.

The Department's guidance listed issues which health authorities had to consider when establishing eligibilitycriteria for what it called continuing NHS health care, i.e. 'a package of care arranged and funded solely by theNHS' - I shall use that terminology from now. However, it included very little guidance on how exactly the listedissues should affect eligibility (see annex for relevant extracts from the guidance).

12. The Department's June 2001 guidance looked ahead to the introduction in October 2001 of NHS fundingfor nursing care in nursing homes (often referred to as 'free' nursing care). This meant that from that date theNHS would fund care in nursing homes by a registered nurse (but not by other staff) for people who wouldotherwise be funding the full cost of their care themselves. From April 2003 NHS funding will be provided forsuch care for all care home residents. (In April 2002 the previous distinction between nursing and residentialhomes ended, and all are now known as care homes, with or without nursing care.) A circular and practiceguide on free nursing care was issued by the Department in August 2001. The amount of nursing care required(the Registered Nurse Care Contribution - RNCC) is assessed by an NHS nurse to determine which of threebands (levels) of nursing care is needed. Each band, high, medium and low, attracts a different level of NHSfunding. The practice guide mentions specifically that the advent of free nursing care left responsibilities forcontinuing NHS health care (which it defined as being where service to meet the totality of the patient's careshould be arranged and funded entirely by the NHS) unchanged.

13. In January 2002 the Department of Health issued a circular (HSC 2002/001) and guidance on theimplementation of a single assessment process for older people, as heralded in the National ServiceFramework. The purpose of the process is to ensure that older people receive appropriate, effective and timelyresponses to their health and social care needs, and that professional resources are used effectively. Theprocess (which is still being implemented) is designed to ensure that agencies do not duplicate each other'sassessments, and should provide information to support the determination of the RNCC for residents in care

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'We do not anticipate that this revision will lead to asignificant shift in the threshold for in-patient continuing care but it should produce clearer and morefocussed definition …'

18. In further comments in October 2002, theHead of Corporate Affairs at the new Health Authoritysaid:

'[The Health Authority] had some discussions withlawyers post-Coughlan, although I have not found anyclear documentary evidence of advice received at thetime. The recollection of those involved was that therewere not any particular points of concern.

'This is borne out by some legal advice the [Health]Authority received … in September 2001, whichstates that "the existing criteria are, I believe, generally sound, although clearly not framed in language which is now common following theCoughlan judgment. In particular they do not expressly refer to the limitation on Social Servicesability to purchase nursing care expressed in theCoughlan case, by reference to what is incidental andancillary for the provision of accommodation The Courtof Appeal gave no clear guidance on the interpretation of this although significantly theyapproved … guidance … that talked in terms of thegeneral nursing care in nursing home being theresponsibility of Social Services. Your existing criteriado have an approximation to the 'quantity' test in thesecond alternative for in-patient care." …'

19. In further comments in November 2002 theChief Executive of the new Health Authority said:

'The former Birmingham Health Authority criteriawere not intended to suggest that only patients whorequired a nurse to be with them and attending tothem without a break 24 hours a day might meet thecriteria but we accept that it is possible they couldhave been interpreted in that way …

' … [the former Authority's lawyers] concluded thatthe criteria were broadly in line with what wasexpected although they identified some areas wherethe language of the criteria did not reflect that beingused after the Coughlan judgment. This view wasreported to the West Midlands Regional Office [of theNHS Executive], which was the requirement at the time.

' … The criteria were designed to recognise a group ofpeople whose needs for nursing care were greater thancould be regarded as incidental or ancillary to the provision of accommodation: and indeed the HealthAuthority funded a number of nursing home placements

for people who were judged to meet the continuing carecriteria. We recognise however that the wording usedin the … criteria was not the same as contained in theCoughlan judgment and that therefore it may not havebeen clear that this was the way in which the criteriawere intended to operate …'

Findings (a)20. The matter I will consider first is whether theHealth Authority's criteria for eligibility for continuingin-patient care were unreasonable. The national guidance, as set out in paragraph 7, stated that healthauthorities should fund the costs of continuing carefor those patients whose health care needs were socomplex or intense as to require regular supervision/intervention of specialist and/or NHSstaff. Health authorities have the discretion to determine their own eligibility criteria, provided thatthese appropriately reflect the national framework.The Authority's criteria required a need for eitherweekly input from a consultant or continual intensiveskilled health care supervision on a 24 hour basis.While it is hard to be sure how the latter criterionwould be applied in practice, there is a risk that itwould have been interpreted as meaning that onlypatients who required a nurse to be with them andattending to them, without a break, 24 hours a daymight be seen to satisfy the criterion. That would bemore restrictive than the national framework.However my main concern about the criteria is howthey measure up to the Coughlan judgment. Healthauthorities had been asked, following the Coughlancase in 1999, to review their criteria in the light of thejudgment. The judgment, and subsequent guidance,clarified the point that health authorities could notexpect social services to fund nursing services unlessthe services were merely incidental or ancillary to theprovision of accommodation and of a nature which asocial services authority could be expected to provide.The Health Authority's criteria do not appear to havebeen amended at that point, even though they do notreflect that position: in my view there would certainlybe a group of people who do not need weekly reviewby a consultant or continual intensive skilled healthcare supervision on a 24 hour basis, but whose needsfor nursing care are greater than could be regardedas merely incidental or ancillary to the provision ofaccommodation. Therefore, in the light of the Coughlanjudgment, the Health Authority's criteria werecertainly over restrictive. The judgment did not changethe law, but clarified what the law had already been.The criteria had therefore been over restrictive since1996.

21. Mrs R was first assessed as ineligible for fullNHS funding for her nursing home care in June 2001.


homes which provide nursing care. The guidance does not suggest how, if at all, the single assessment processwould contribute to assessment of eligibility for full NHS funding for care in a home. The guidance does notrecommend the use of any particular assessment tool, but leaves it to bodies to develop and agree what to uselocally.

Issues arising from complaints14. The complaints I have received are about events that arose in the period 1997 to date (but mainly beforeOctober 2001), and raise several important issues. Those include:

• Informing and involving patients and their relatives;

• Developing eligibility criteria for NHS-funded care in line with guidance issued in 1995;

• Reviewing eligibility criteria in the light of the Coughlan judgment (July 1999);

• The national framework for NHS funded care;

• Assessment against criteria.

Involvement and information15. Patients and relatives often complain about not being adequately involved in decisions about movinginto a care home, about being given inadequate information about how decisions are reached, and the financialimplications of those decisions.

16. Many patients move to care homes after a spell in hospital, for example following a stroke or a seriousfall. While it is in no-one's interests for patients to remain in hospital longer than they need to, this means thatthere can be pressure to arrange a move quickly. Yet giving up one's own home and moving into a care home isa major event, with enormous emotional and financial implications. It is therefore essential that health andsocial services staff, who are involved jointly in such situations, work well together to make sure that patientsand relatives have all the information and support they need to make the difficult decisions involved at such astressful time. Too often I receive complaints of patients' and relatives' views not being taken into account inmulti-disciplinary assessments, of little or no written information being provided and of criteria and proceduresnot being explained adequately.

17. A contributory factor in this seems to be inadequate communication between health authorities andNHS trusts. Within the NHS, primary responsibility for setting eligibility criteria rests with health authorities: butit is usually trust staff who carry out clinical assessments of patients' needs against the criteria, sometimes withlittle or no guidance on the practical application of the criteria. Also they are not always sufficiently well-informed to discuss the wider issues of eligibility, for instance the review procedure, with patients and relatives.

Developing eligibility criteria in line with the 1995 guidance18. The Department of Health's 1995 guidance required, for the first time, that all health authoritiesdeveloped eligibility criteria for access to NHS-funded continuing care. It laid down a broad national framework,leaving health authorities room to develop their own local criteria within that. It is not surprising, therefore,that criteria vary from authority to authority and that (as in one case published today, E.420/00-01) the samepatient might be judged to be eligible by one authority but not another. Patients and their relatives find suchdifferences hard to understand within a national health service but, without national criteria, such differencesare almost inevitable and not in themselves evidence of maladministration.

0102920699 / sig6 / plateA


transfers, in need of all personal care, but able to feedherself, needing occasional enemas, catheterised andwith a sore left heel, a superficial sore on her sacrumand a healing burn on the left side of her chest. Sheis nursed on a Nimbus III mattress, but is fully alertthough confused and can sit out of bed.

'Although her cardiac condition may from time to timeneed consideration, I do not believe she needs weekly Consultant supervision, nor do I foresee usefulprospects of rehabilitation. In so far as the wording ofthe criteria is capable of precise interpretation, I donot think that she needs daily care incorporating continual intensive skilled care with health care supervision or intervention on a 24 hour basis, nor onthe other hand is her prognosis foreseeably eightweeks or less. I do not therefore feel that she meetsthe [Health] Authority's Continuing Care Criteria forcontinued in-patient care.'

22 August - The Health Authority again advised MrsS that following the second assessment Mrs R had notmet the criteria for NHS Continuing care.

10 December - Mrs R was discharged to a nursinghome, where she died six days later.

Mrs S' evidence16. In her letter to the Ombudsman Mrs S complained that her mother had been in hospital forover five months unnecessarily and that as only herbasic needs were being met, her quality of life waspoor. Despite being unable to do anything for herself,her mother was unable to obtain NHS funding for continuing in-patient care in a nursing home.

The new Health Authority's response tothe statement of complaint17. On 19 April 2002, in his formal response tothe statement of complaint the Chief Executive of thenew Health Authority wrote:

'… The [Health] Authority's criteria were originallyproduced in response to the requirement to agreecontinuing health care criteria set out in HSG(95)8.This guidance identified a need to include a categoryfor continuing in-patient care that covered patientswith a level of complexity or intensity of the need thatmeant that they needed regular specialist skilledhealth care supervision. (Annex A, section E of theguidance).

'There is obviously a balance to be struck in producingcriteria between providing sufficient clarity and consistency and ensuring that staff applying the criteria are able to relate them to the circumstances

of any particular patient. The health authority's view,however, is that the criteria as currently produced:

• Identify a group of patients whose clinicalneeds are so complex that they require regularconsultant review;

• Identify a group of patients whose need forcare is so intensive that they need daily skilledhealth care supervision;

• Distinguish between patients who may be inneed of care but whose needs could be metthrough the services normally available to, forexample, residents of nursing homes andpatients with higher dependency continuinghealth care needs.

'The [new Health] Authority is, also, in the process ofreviewing our continuing health care criteria followingthe [Coughlan] judgment and recent guidancereceived from the DoH (HSC 2001/015). We are in thefinal stages of this review which has included seekingadvice from the [Health] Authority's solicitors and areconsulting with staff involved in applying the criteria inboth health and social services. It is, however, likelythat the relevant sections of the criteria will berevised to read:

"the person has such complex, unstable and/or unpredictable health care needs that s/herequires continual intensive skilled health caresupervision and/or intervention on at least adaily basis. The level of care needed will be overand above the highest level of free nursing careprovided in a nursing home

AND

has been assessed for rehabilitation and foundto have no further capacity to benefit from such programmes."

'The revision is designed to:

• provide clearer criteria for use by staff

• focus more directly on the complexity, instability or unpredictability of care needsrather than the frequency of intervention byparticular health care professionals

• provide a specific link between the criteriaand the levels of need set out in the guidancefrom implementing NHS responsibility for nursing care in nursing homes.


19. However, some of the local criteria I have seen appeared to be significantly more restrictive than theguidance permitted. For instance: some explicitly say that only patients requiring continued consultantsupervision, or on-site medical expertise, are eligible for NHS-funded care: others seem to suggest that inexplanatory text, or to imply that only people requiring hospital care are eligible. Yet it is quite clear from the1995 guidance, and reinforced by the additional guidance in EL (96) 8, that some other patients should beeligible.

Taking the Coughlan judgment into account20. The Coughlan judgment provided a valuable analysis of some legal and policy issues connected with thefunding of continuing care, and set out the basis for deciding whether it was reasonable for the NHS to refuse tofund the general nursing care of a patient in a care home. The Department of Health quite properly drew thejudgment to the attention of NHS bodies and asked health authorities to review and, if necessary, revise theircriteria to ensure that they were in line with the judgment. They were also asked to reassess patients' eligibilityfor NHS-funded care where criteria had been revised.

21. However, in a number of the complaints I have seen, any review of the criteria following the judgmentseems to have been very limited, and criteria remained unchanged even when it is very hard to see that theywere in line with the judgment. I would have expected the Department of Health, when reviewing theperformance of health authorities, to have picked this up and taken action itself. But I have seen some evidenceto suggest that the Department provided little real encouragement to authorities to review their criteria, andeligibility of patients, actively. My enquiries so far have revealed one letter (in case E.814/00-01) sent out froma regional office of the Department of Health to health authorities following the 1999 guidance, which couldjustifiably have been read as a mandate to do the bare minimum. The statement in the 1999 guidance, that moreguidance would follow later that year, may also have encouraged some authorities to wait before takingsignificant action.

22. It was nearly two years from the time of the Coughlan judgment before further substantive guidancewas issued, and in some health authorities little progress seems to have been made in reviewing their eligibilitycriteria during that period. There is a significant group of patients whose nursing care cannot be regarded asmerely incidental or ancillary to the provision of accommodation which a local authority is under a duty toprovide, or of a nature which a social services authority could be expected to provide. It appears to me thatsome health authorities were reluctant to accept their responsibilities with regard to such patients and were notbeing pressed by the Department of Health to do so.

23. Since October 2001 the Coughlan judgment has rather less significance as regards eligibility for NHS-funded continuing care (for people who otherwise had to pay the cost of care - including nursing care - in a carehome themselves) because care provided by registered nurses is now funded by the NHS. But the impact of thejudgment reaches back some way: the judgment elucidated the law as it was, it did not introduce a change in1999. Even before then it was contrary to the law for health authorities to operate criteria which were out ofline with the law, as explained in the judgment. I would not regard their choice of criteria as maladministrativebetween 1996 and 1999 if the criteria were in line with national guidance. However, I take the view that healthauthorities still have a responsibility, in the light of the Coughlan judgment, to remedy injustice to patientsflowing from any criteria which are now known to have been unlawful. I therefore think it only right for healthauthorities who have used criteria out of line with the judgment at any point since April 1996 (when it firstbecame mandatory to have written criteria), to attempt to identify any patients who may wrongly have beenmade to pay for their care in a home and to make appropriate recompense to them or their estates.

24. It is impossible for me to estimate how many people might be affected and the potential total cost ofmaking such payments: but I recognise that significant numbers of people and sums of money are likely to beinvolved. I also recognise that the responsibilities of the health authorities involved transferred to new

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("self-funders") will no longer have to pay for registered nurse care in a nursing home where theNHS assesses such care as needed. The NHS willbecome responsible for this group from that date.'

The Health Authority policy and criteria13. In response to HSG 95(8) the HealthAuthority established a 'Continuing Health Care' Policy(the policy). The criteria under which a patient wasentitled to long term in-patient care included whenhe/she has:

'such complex clinical needs that s/he requires atleast weekly assessment and/or review by a consultant. Has been assessed for rehabilitation andfound to have no further capacity from such programmes.

OR

'daily care incorporating continual intensive careskilled health care supervision and/or intervention ona 24 hour basis. Has been assessed for rehabilitationand found to have no further capacity from such programmes.'

14. The Health Authority also published a patientleaflet entitled 'Your Entitlement to Continuing [NHS-funded] Care' which listed the criteria which wouldentitle patients to NHS-funded continuing care as:

'When their health needs are so complex and difficultthat they:

• need skilled health care staff to look afterthem around the clock;

• need a weekly review of their condition by anNHS consultant;

• are unlikely to get better or benefit fromrehabilitation therapy.

'when they could die at any moment and it would notbe right to transfer them from hospital…'

Sequence of events15. I set out below the principal events and correspondence relevant to the matters investigated.

30 May 2001 - Mrs R was admitted to hospital following a severe stroke.

19 June - The hospital stated that Mrs R was readyto be discharged to a nursing home. A nursing assessment was completed for Social Services, which

showed that their criteria for nursing home placementwere met. The nursing records state:

'Mrs R … currently requires 24 hour care and attention under the supervision of a registered nurse… nursing home care is indicated … Does not requireNHS Continuing Health Care.'

13 July - The Health Authority's criteria for NHS continuing care were considered, following a requestfrom the family for NHS-funded care. A multi-disciplinary assessment of Mrs R was carried out by aClinical Nurse Specialist, Consultant Geriatrician,Tissue Viability Nurse and a Physiotherapist. Theyconcluded that Mrs R was not eligible for continuingcare funding stating that:

'Mrs R's clinical needs are not so complex that sherequires at least weekly assessment and or review bya Consultant.

'Daily care can be provided under the supervision of aRegistered Nurse with supporting visits from theTissue Viability Nurse.'

On 13 July a meeting took place between Mrs R's family and the multi-disciplinary team that hadassessed Mrs R. Mrs R's condition was discussed. Inrelation to NHS-funded continuing care an explanationwas given as to why the criteria were not met and thecopy of the criteria and printed eligibility form wasgiven to the family.

17 July - Mrs S wrote to the Health Authority to askfor a review of the assessment.

'I request a review of the assessment made on 19 June … My mother's present condition is very serious as following the severe stroke she suffered on30 May, she is paralysed on her left side and is unableto feed unaided. She cannot walk or sit upright and istotally reliant upon others for her health and well-being. The burns she sustained at the time of thestroke … are not healing after seven weeks of hospital treatment … Her left arm and hand are alsovery swollen at present. She has also suffered considerable memory loss as a result of the stroke,resulting in problems of family recognition.'

14 August - A different Consultant Geriatriciancarried out a further assessment of Mrs R's eligibilityfor in-patient continuing care. In his letter to thehospital Commissioning Manager, the ConsultantGeriatrician wrote:

'… [Mrs R] is now ten weeks after a severe strokewhich left her immobile, needing hoisting for


strategic health authorities in October 2002. Furthermore the relevant budget will now be held by primary caretrusts, not the new authorities. I can see that none of this will be easy to resolve: but that is not a reason forme to refrain from expecting a remedy for those who have suffered an injustice.

25. Prompted by a letter my predecessor sent to him on completion of the first of these investigations, inAugust 2002 the Chief Executive of the NHS very helpfully included, in a bulletin sent to Chief Executives ofhealth and social care bodies, a reference my conclusions in that case. It reminded health authorities of theneed to consider whether criteria previously applied in their area were similarly at fault and whether patientswere wrongly denied NHS-funded care. That was an excellent first step towards resolving the issue, but I cansee that further guidance and support will be needed from the Department of Health to ensure that all strategichealth authorities take comprehensive and consistent action in this regard. Otherwise I fear I may see furthercomplaints about the way remedial action has been tackled locally.

Recommendations26. I therefore recommend that strategic health authorities and primary care trusts should:

•• Review the criteria used by their predecessor bodies, and the way those criteria wereapplied, since 1996. They will need to take into account the Coughlan judgment,guidance issued by the Department of Health and my findings;

•• Make efforts to remedy any consequent financial injustice to patients, where the criteria, or the way they were applied, were not clearly appropriate or fair. This willinclude attempting to identify any patients in their area who may wrongly have beenmade to pay for their care in a home and making appropriate recompense to them ortheir estates.

27. I also recommend that the Department of Health should:

•• Consider how they can support and monitor the performance of authorities and primary care trusts in this work. That might involve the Department assessing whether,from 1996 to date, criteria being used were in line with the law and guidance. Wherethey were not, the Department might need to co-ordinate effort to remedy any financialinjustice to patients affected;

•• Consider being more proactive in checking that criteria used in the future follow theguidance.

The national framework for NHS-funded care28. While I am in no doubt that the Authorities in the first four completed investigations deserve thecriticisms made of them in respect of the criteria they chose to use, it is clear to me that there are morefundamental problems with the system for deciding who does or does not get their care fully funded by the NHS.As the lengthy legal and policy section of this report helps to show, the national policy has been far from simpleto understand or apply for some time. A line has to be drawn between people eligible for full NHS funding andthose who are not. While, as the Coughlan case illustrates, some possible policy decisions on where to drawthat line would be unlawful, various policy decisions are possible within the law. Nothing in this report should beread as commenting on the national policy decision about where to draw the line, but I do comment on howthe line is drawn. As the Royal Commission recognised (see paragraph 6) when referring more widely to statefunding, any system must be fair and logical and should be transparent in respect of the entitlement ofindividuals.

0102920699 / sig7 / plateA


• where the complexity or intensity of theirmedical, nursing care or other clinical care orthe need for frequent not easily predictableinterventions requires the regular (in themajority of cases this might be weekly or morefrequent) supervision of a consultant, specialistnurse or other NHS member of the multi-disciplinary team;

• who require routinely the use of specialisthealth care equipment or treatments whichrequire the supervision of specialist NHS staff;

• have a rapidly degenerating or unstablecondition which means that they will requirespecialist medical or nursing supervision.'

HSC 1999/180 - Ex parte Coughlan:Follow-up Action8. In August 1999, in response to a Court ofAppeal judgment in a case brought by Miss P Coughlan(the Coughlan judgment), the Department of Healthissued further guidance on continuing health care inthe circular HSC 1999/180. It included in its summaryof the judgment:

'The NHS does not have sole responsibility for nursingcare. Nursing care for a chronically sick person may inappropriate cases be provided by a local authority asa social service and the patient may be liable to meetthe cost of that care according to the patient's needs.... Whether it was unlawful [to transfer responsibilityfor the patient's general nursing care to the localauthority] depends, generally, on whether the nursingservices are merely (i) incidental or ancillary to theprovision of the accommodation which a local authority is under a duty to provide and (ii) of a naturewhich it can be expected that an authority whose primary responsibility is to provide social services canbe expected to provide. Miss Coughlan needed services of a wholly different category…'

9. The Department's guidance included in itsdescription of the judgment:

'(d) Local Authorities may purchase nursing services… only where the services are:

(i) merely incidental or ancillary to the provisionof the accommodation which a local authority isunder a duty to provide ...; and

(ii) of a nature which it can be expected than anauthority whose primary responsibility is to provide social services can be expected to provide.

(e) Where a person's primary need is a health need,then this is an NHS responsibility ...'

HSC 2001/015 - Continuing Care: NHSand Local Councils' Responsibilities10. In June 2001, the Department of Health produced new guidance, HSC 2001/015, the purposesof which included consolidating guidance on continuing NHS health care in light of the Coughlanjudgment. This cancelled all of the previous guidanceI have cited including HSG (95)8, and HSC 1999/180.Health authorities, in conjunction with primary caretrusts (PCTs) and local councils were asked to ensurethat continuing health care policies complied with theguidance by 1 October 2001 and by 1 March 2002, theyshould have agreed joint eligibility criteria, setting outtheir respective responsibilities for meeting continuing health and social care needs. (Note: InMay 2002, in their guidance Fair Access to CareServices, the Department of Health said that continuing care criteria needed to be agreed atStrategic Health Authority level by 1 October 2002.)

11. Annex C of the guidance, 'Key issues to consider when establishing continuing care eligibilitycriteria', listed the matters which health authorities indiscussion with local councils should consider whenestablishing their eligibility criteria for continuing NHShealth care. These included:

'• The nature or complexity or intensity orunpredictability of health care needs (and anycombination of these needs) requires regularsupervision by a member of the NHS multi-disciplinary team, such as the consultant, palliative care, therapy or other NHS memberof the team.

• A need for care or supervision from a registered nurse and/or a GP is not sufficientreason to receive continuing NHS health care.

• The location of care should not be the soledeterminant of eligibility. Continuing NHS healthcare may be provided in a NHS hospital, a nursing home, hospice or the individual's ownhome.'

The guidance did not explain exactly how these factors should affect eligibility.

HSC 2001/17 - Guidance on FreeNursing Care in Nursing Homes12. In September 2001, in circular HSC 2001/17,the Department of Health issued guidance on freenursing care in nursing homes stating:

'… from 1 October 2001, those people paying fees fornursing home care in full from their own resources


29. From what I have seen, the national policy and guidance that has been in place over recent years doesnot pass that test. Those who complain to me find the system far from fair or logical and often cannotunderstand why they or a relative are not entitled to NHS funding. At times entitlement seems to havedepended in part variously on ill-defined distinctions between:

• Specialist and general health care;

• Health care and social care;

• Care by registered nurses and care by others.

As the Coughlan judgment points out, basing eligibility on the need for specialist care does not cater for thesituation where the demands for nursing care are continuous and intense. It can also be unclear whatconstitutes specialist care: for instance, does that include input from mental health nurses?

30. The distinction between health and social care (and that between care by registered nurses or byothers) is a blurred one which has also shifted over time. Nurses have been trained to take on tasks whichyears ago would only have been carried out by doctors; and auxiliary nurses, care assistants and carersincreasingly perform tasks which, in the past, would have been carried out by registered nurses. Long termcarers can learn to handle tasks which would, even now, usually be carried out by nurses or other clinical staff.Some patients needing long term care need help with a wide range of basic activities: to the average patient orcarer, the distinction professionals might make between health and social needs is largely irrelevant.

31. I do not underestimate the difficulty of setting fair, comprehensive and easily comprehensible criteria.The criteria have to be applied to people of all ages, with a wide range of physical, psychological and otherdifficulties. There are no obvious, simple, objective criteria that can be used. But that is all the more reason forthe Department to take a strong lead in the matter: developing a very clear, well-defined national framework.One might have hoped that the comments made in the Coughlan case would have prompted the Department totackle this issue. However efforts since then seem to have focused mainly on policy about free nursing care.Authorities were left to take their own legal advice about their obligations to provide continuing NHS health carein the light of the Coughlan judgment. I have seen some of the advice provided, which was, perhaps inevitably,quite defensive in nature. The long awaited further guidance in June 2001 (see paragraph 11 and Annex) givesno clearer definition than previously of when continuing NHS health care should be provided: if anything it isweaker, since it simply lists factors authorities should 'bear in mind' and details to which they should 'payattention' without saying how they should be taken into account. I have criticised some Authorities for havingcriteria which were out of line with previous guidance: except in extreme cases I fear I would find it even hardernow to judge whether criteria were out of line with current guidance. Such an opaque system cannot be fair.

Recommendation32. The Department of Health should review the national guidance on eligibility forcontinuing NHS health care, making it much clearer in new guidance the situations whenthe NHS must provide funding and those where it is left to the discretion of NHS bodieslocally. This guidance may need to include detailed definitions of terms used and caseexamples of patterns of need likely to mean NHS funding should be provided.

Assessing against criteria33. Given the freedom to decide their own eligibility criteria within the loose national framework, healthauthorities have adopted a range of approaches, both to the criteria themselves and to procedures and guidance underlying them. Looking at most of the sets of criteria we have seen, it is fairly easy to identify agroup of people who would definitely not be eligible for funding, and a very small group of people who definitelywould be eligible (many of whom would not be well enough to leave hospital). But there is a large number ofpeople in the group in between. Now and in the past, a line has to be drawn through that group, and this is doneusing generally quite subjective and broadly drafted criteria. Yet which side of the line a patient's needs arejudged to fall can make an enormous financial difference to the patient and their family.

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Annex E Case No. E.1626/01-02 • NHS Funding for Long Term Care • January 2003 49

Annex ECase No. E.1626/01-02

Refusal to provide continuing care fundingComplaint against:

Birmingham Health Authority

Complaint as put by Mrs S1. The account of the complaint provided by Mrs S was that on 30 May 2001, her 90 year old mother, Mrs R, was admitted to hospital following asevere stroke, which had left her immobile, incontinent, and confused. As it was unlikely that Mrs R's condition would change, Mrs S thought thather mother should be transferred to a nursing homeclose to her family. On 19 June hospital staffassessed Mrs R against Birmingham HealthAuthority's criteria for eligibility for NHS funding forsuch care and decided that she did not qualify.

2. On 17 July, Mrs S wrote to the HealthAuthority challenging that decision. She complainedthat she had not been consulted or involved in the initial assessment process. On 22 August, the HealthAuthority's Commissioning Manager advised Mrs Sthat a second assessment of Mrs R had been completed and that she did not meet the criteria forNHS Continuing Care. On 11 September Mrs S wroteto the Health Authority to request a review of the decision to fund her mother's care. However, on 5 October the Health Authority advised Mrs S that thedecision not to fund care was appropriate and that ithad been decided that a review panel was unnecessary. On 10 December Mrs R was transferredto a nursing home. The Health Authority agreed tofund the nursing element of her care. Mrs R died sixdays later. Mrs S remains dissatisfied.

3. The matters investigated were that:

(a) The Health Authority's criteria for eligibility for continuing in-patient care wereunreasonable; and

(b) The review process was not properly applied.

Investigation4. The statement of complaint for the investigation was issued on 11 March 2002. On 1 April2002 the Health Authority became part of the Birmingham and The Black Country Health Authority

(the new Health Authority). Comments were receivedfrom the new Health Authority and relevant papers,including Mrs R's clinical records, were examined. Ihave not put into this report every detail investigated;but I am satisfied that nothing of significance has beenoverlooked.

Background5. The statutory framework for the provision ofhealth services is outlined in paragraph 6; paragraphs7 - 12 summarise relevant Department of Health guidance on Continuing Care and paragraph 26 outlinethe review process. Relevant health authority policiesand criteria are summarised in paragraphs 13-14 and27. Following Mrs S' request that her mother shouldreceive NHS-funded care in a nursing home closer toher family, Mrs R was assessed against the HealthAuthority's criteria for continuing in-patient care. Atthat time, the relevant national guidance was HSG(95)8 and HSC 1999/180; however in June 2001 newguidance was issued, HSC 2001/015, which superceded the previous guidance.

Complaint (a): the Health Authority's criteria for eligibility for continuing in-patient care were unreasonableStatutory framework6. The provision of health services in Englandand Wales is governed by the National Health ServiceAct 1977, which states in section 3(1) that it is theSecretary of State's duty to provide services 'to suchextent as he considers necessary to meet all reasonable requirements ...,' including 'such facilitiesfor ... the after-care of persons who have sufferedfrom illness as he considers are appropriate as part ofthe health service; ...'

National guidance on Continuing Care HSG (95)8 - NHS Responsibilities forMeeting Continuing Health Care Needs7. In 1995 the Department of Health publishedHSG (95)8. This national guidance stated that witheffect from April 1996, health authorities wererequired to have clear eligibility criteria in place forcontinuing NHS health care. Health authorities had toset priorities for continuing health care within theresources available to them. Annex A of the guidance'Conditions for Local Policies and Eligibility criteria forContinuing Health Care', listed a number of conditionsthat health authorities had to cover in their localarrangements and included the following:

'E Continuing in-patient care'… The NHS is responsible for arranging and fundingcontinuing inpatient care, on a short or long termbasis, for people:


34. Some authorities have attempted to address this problem by producing detailed guidance andprocedures on the assessment of patients and the application of their criteria. Some use specific assessment'tools'. Where the guidance and procedures are well-drafted and properly promulgated and understood by allthose doing assessments, that can at least assure some degree of consistency in the application of the criteriawithin the authority's area. But unless they are published alongside the criteria themselves, patients and carerscan be left inadequately informed as to how decisions about eligibility are actually being made.

35. Other health authorities have little or no practical guidance about the application of the criteria, and itis left to clinical staff in the community or hospitals to interpret them as best they can when assessing patients.This will almost inevitably lead to inconsistency.

36. The Department of Health does not appear to have provided any significant help to NHS bodies onmethods and tools for assessing against eligibility criteria for continuing NHS health care. Although theDepartment is in the process of introducing a 'single assessment process' for older people, the associatedguidance does not suggest whether or how this could provide a basis for, or contribute to, the assessment ofeligibility for continuing NHS.

Recommendation37. The Department of Health should consider how to link assessment of eligibility forcontinuing NHS health care into the single assessment process and whether it shouldprovide further support to the development of reliable assessment methods.

Conclusion and recommendations38. The findings in the cases reported today and the themes emerging from those still under investigationlead me to conclude that:

• The Department of Health's guidance and support to date has not provided the secure foundation neededto enable a fair and transparent system of eligibility for funding for long term care to be operated acrossthe country;

• What guidance there is has been mis-interpreted and mis-applied by some health authorities whendeveloping and reviewing their own eligibility criteria;

• Further problems have arisen in the application of local criteria to individuals;

• The effect has been to cause injustice and hardship to some people.

39. I therefore recommend that strategic health authorities and primary care trusts should:

• Review the criteria used by their predecessor bodies, and the way those criteria were applied, since1996. They will need to take into account the Coughlan judgment, guidance issued by the Department ofHealth and my findings;

• Make efforts to remedy any consequent financial injustice to patients, where the criteria, or the way theywere applied, were not clearly appropriate or fair. This will include attempting to identify any patients intheir area who may wrongly have been made to pay for their care in a home and making appropriate recompense to them or their estates.

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48 February 2003 • NHS Funding for Long Term Care • Annex D Case No. E.814/00-01

Group 2: People whose needs are such that they can live in a nursing home but requirea degree of continuing health care beyond that which is routinely offered in a registerednursing home

These are people who are discharged from hospital to a nursing home or admitted to a nursing homefrom the community, whose needs are such that they require an intensive and complex personal carepackage beyond the customary level of care offered by the home. They will be eligible for NHS funding of the extra nursing care they require over and above the general nursing care included in thestandard nursing home price. They represent the kind of people whose placement in a nursing home issupported by the Section 28A Grant, which is a sum of money passed by the Authority to SocialServices for this purpose.

Patient needs NHS-funding

1. Patients with multiple and complex nursing and These patients will be eligible for NHSmedical problems, i.e. three or more of the following:* funding of the health care costs, that is· Immobility requiring two or more skilled within the range for that client group and is

persons to transfer and/or skilled use of a hoist; over and above the general nursing care.· Double incontinence;· Severe pressure sores exposing muscle, tendon This arrangement will be subject to a full

or bone or deep tissues; assessment of needs by health and social· Leg ulcer covering 50% or more of the lower leg; service staff and agreement between the · Continuous subcutaneous infusions; continuous agencies that the extra cost charged by the

oxygen therapy; feeding by gastrostomy; nursing home is justified.frequent changes of tracheotomy tube;

· Insulin-dependent diabetes and regular blood Patients are also eligible for NHS funding ofglucose monitoring; items of medical and nursing equipment,

· Brittle Parkinson's disease requiring prompt which can only be provided through a intervention and frequent medication; hospital.

· Convulsions requiring prompt intervention but without the threat of deterioration of the Patients remain eligible for NHS-funded GPpatient's general condition. and specialist health care services while in a

in a nursing home.

2. Patients with dementia whose confusion and As above.challenging behaviour cannot be managed in the community and requires care in a specialised nursing home.

3. Regular therapeutic support where deemed As above.essential by a consultant to be delivered by professionally qualified staff.

* (These are not intended to be used as absolutes, more as a general guide to the degree of dependency. The overall clinical picture is equally important).


40. I also recommend that the Department of Health should:

• Consider how they can support and monitor the performance of authorities and primary care trusts inthis work. That might involve the Department assessing whether, from 1996 to date, criteria being usedwere in line with the law and guidance. Where they were not, the Department might need to co-ordinateeffort to remedy any financial injustice to patients affected;

• Review the national guidance on eligibility for continuing NHS health care, making it much clearer in newguidance the situations when the NHS must provide funding and those where it is left to the discretion ofNHS bodies locally. This guidance may need to include detailed definitions of terms used and case examples of patterns of need likely to mean NHS funding should be provided;

• Consider being more proactive in checking that criteria used in the future follow that guidance;

• Consider how to link assessment of eligibility for continuing NHS health care into the single assessmentprocess and whether the Department should provide further support to the development of reliableassessment methods.

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Annex D Case No. E.814/00-01 • NHS Funding for Long Term Care • February 2003 47

1998. However it appears from what it did at the time(paragraph 21) and its comments in paragraph 23, thatthe Authority has misunderstood the crucial point: itwas not about whether Mrs Z should still have been inthe nursing home but whether her eligibility for fundingthere had changed. If, as appears to be the case, itsreview was simply of the appropriateness of the placement, then it was inadequate. It might have beenthat the home remained the appropriate placement butthat Mrs Z's needs had increased to the point where,even using the Authority's defective criteria, she fellinto Group 1 and was entitled to funding. I have notseen evidence that that possibility was considered. Iuphold the complaint.

Conclusion42. I have set out my findings in paragraphs 32-41. I have upheld the complaints for the reasonsgiven above. The new Authority has asked me to convey to Mr Z - as I do through this report - its apologies for those shortcomings and has agreed toact on my recommendation in paragraph 40.

Appendix to E.814/00-01

Group 1: People whose needs make them eligible for continuing heath care as an in-patient

These are people who would normally need to live in a hospital setting, a specialised nursing home orhospice because the specialised nature of continuing health care they require could not be provided inany other setting.

Patient needs Site of care NHS-funding

1. Patients who require constant attention of Hospital (NHS or independent) 100%a qualified nurse and constant availability of Hospice Specialised nursingon-site specialist medical expertise 24 hours homea day.

2. Patients who require highly complex or Hospital (NHS or independent) 100%specialist equipment to maintain life (which Specialised nursing homecould not be provided outside hospital) and staff trained to maintain the equipment and provide emergency care in the event of equipment failure.

3. Patients with a high degree of dependence Hospital (NHS or independent) 100%on nursing care, who also have a condition Hospice Specialised nursingwhich fluctuates unpredictably and which homewithout frequent and prompt intervention by anon-site specialist team might lead to death, deterioration or severe distress. Examples of such conditions include brittle diabetes; frequent, prolonged convulsions; terminal illnesswith severe problems of symptom control.

4. Patients in coma or in a persistent vegetative Hospital (NHS or independent) 100%state. Specialised nursing home

5. Patients admitted compulsorily under the Hospital (NHS or independent) 100%terms of the Act; or patients who would meet the requirements of the act for compulsory admission but are willing to be admitted voluntarily.

10 February 2003 • NHS Funding for Long Term Care • Annex A

Annex A

Extracts from HSC 2001/015,LAC (2001)18

Continuing Care: NHS and LocalCouncils’ responsiblities, 28 June 2001

'....Continuing NHS Health care

18. There are a number of key issues to bear inmind when arranging or reviewing continuing NHShealth care:

• the setting of the care should not be the soleor main determinant of eligibility. ContinuingNHS health care does not have to be providedin an NHS hospital and could be provided in anursing home, hospice or the individual's ownhome;

• the timescale of the care can vary betweenthe remainder of an individual's life andepisodes of care;

• the local eligibility criteria for continuing NHShealth care are based on the nature or complexity or intensity or unpredictability ofhealth care needs (see Annex C for furtherdetails on eligibility criteria for continuing NHShealth care);

• patients who require palliative care andwhose prognosis is that they are likely to die inthe near future should be able to choose toremain in NHS-funded accommodation (including in a nursing home), or to returnhome with the appropriate support. Patientsmay also require episodes of palliative care todeal with complex situations (including respitepalliative care). The number of episodesrequired will be unpredictable and applicationsof time limits for this care are not appropriate;

• the impact on social security benefits for people receiving continuing NHS healthcare willvary according to the location of that care:

if an individual is placed, under the NHS Act1977, as an in-patient in a hospital or similarinstitution (which may include a nursing home)where food and accommodation costs are metby the NHS, certain social security benefits aredownrated after six weeks and again after 52weeks (see Schedule 7 of the Income Support(General) Regulations 1987 [S.I. 1987/1967]);

where people are receiving continuing NHShealth care in their own home, the NHS meetsthe full cost of their health care needs. Socialsecurity benefits (which may include disabilitybenefits) available to support the individual'sother costs are not downrated.…

'Annex C - key issues to consider whenestablishing continuing NHS health careeligibility criteria

All Health Authorities, in discussion with localcouncils, should pay attention to the details belowwhen establishing their eligibility criteria forcontinuing NHS health care.

1. The eligibility criteria or application ofrigorous time limits for the availability of services by ahealth authority should not require a local council toprovide services beyond those they can provide undersection 21 of the National Assistance Act (see point 20of the guidance for the definition of nursing care usedin the Coughlan judgment).

2. The nature or complexity or intensity orunpredictability of the individual's health care needs(and any combination of these needs) requires regularsupervision by a member of the NHS multidisciplinaryteam, such as the consultant, palliative care, therapyor other NHS member of the team.

3. The individual's needs require the routine useof specialist health care equipment under supervisionof NHS staff.

4. The individual has a rapidly deteriorating orunstable medical, physical or mental health conditionand requires regular supervision by a member of theNHS multidisciplinary team, such as the consultant,palliative care, therapy or other NHS member of theteam.

5. The individual is in the final stages of aterminal illness and is likely to die in the near future.

6. A need for care or supervision from aregistered nurse and/or a GP is not, by itself, sufficientreason to receive continuing NHS health care.

7. The location of care should not be the sole ormain determinant of eligibility. Continuing NHS healthcare may be provided in an NHS hospital, a nursinghome, hospice or the individual's own home.

Guidance on free nursing care will include moredetails on determining registered nurse input toservices in a nursing home, where the care packagedoes not meet continuing NHS health care eligibilitycriteria.'

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provision of accommodation, or of a nature which a local authority could be expected to provide. Yet underthe Authority's criteria, the NHS would only fund theadditional healthcare costs, above those for generalnursing care in a nursing home. The Local Authoritywould be expected to fund all the other nursing costs:that seems to me to be out of line with the Coughlanjudgment. I criticise the Authority for not amending itscriteria, and for not reconsidering the eligibility ofpatients adequately in the light of the judgment. As thejudgment did not change the law, only clarify it, thatreconsideration needed to be retrospective as well asprospective. However I have taken note of the lettersent to the Authority by the Regional Office of theDepartment of Health (paragraph 7) immediatelyafter the 1999 guidance. That does seem to me to havebeen likely to encourage authorities to believe that itwould be acceptable to make minimal, if any, changesto their policies, and I mitigate my criticism of theAuthority accordingly.

37. Mr Z has suggested that the NHS had anobligation to fund Mrs Z's nursing home care because,he suggests, she would have required such care butfor the falls that she suffered in hospital. This investigation has not looked into whether Mrs Z's fallsshould have been prevented. That is not a matterbetween Mr Z and the Authority but between him andthe Trust, and I would not have expected the Authorityto take that allegation into account in deciding on Mrs Z's eligibility but to leave him to resolve that withthe Trust.

38. Mr Z also complains about lack of timelyinformation either about the financial implications ofthe discharge to a nursing home or about the continuing care review procedure. The question ofadvice on financial implications is largely one forsocial services, though Trust staff might be expectedto provide some basic information. I note that the LGOinvestigation found that Mr Z was made aware of thefinancial implications of his mother's move to a carehome and the possibility of a legal charge for residential accommodation. I see no reason to disagree with this finding. However I have seen noevidence that the Authority informed Mr Z about thereview procedure until after Mrs Z left hospital, eventhough it was aware of his dissatisfaction with theplans for his mother's care at least some time beforeher discharge from the hospital. Although I recognisethat the Authority may not have been told of her discharge from hospital, I can see that it was veryunhelpful that Mr Z was told about the procedure bythe Authority when (under the guidance at that time) itwas too late to ask for a review as Mrs Z had alreadyleft hospital.

39. In conclusion, I do not see any force in someof Mr Z's arguments including those relating to theMental Health Act, but I do have other significant concerns about how the Authority set its eligibility criteria and applied them to Mrs Z, particularly in thelight of the Coughlan judgment. That calls into question whether in fact Mrs Z should have beendeemed eligible for NHS funding. It is certainly verypossible (but not entirely certain) that, if appropriatecriteria had been applied, Mrs Z would have qualifiedfor fully funded care at some point. I uphold the complaint.

40. I turn now to the question of remedial action.The organisation of the NHS has changed since theseevents. Berkshire Health Authority no longer exists.Responsibility for setting eligibility criteria now lies witha new Thames Valley Health Authority (the newAuthority), and the relevant budget for funding suchcare will be held by a Primary Care Trust (the PCT).While I recognise that the new Authority played no partin these events, I must regard it as responsible fortaking remedial action. I recommend that as a matterof urgency the new Authority should review the eligibilitycriteria across its area from April 1996 to date to ensurethat they were (and are) in line with the Coughlanjudgment and other relevant guidance. It should thenpromulgate any revised criteria, with any necessarydetailed guidance and training on implementation, torelevant trusts in its area. The new Authority, inconsultation with the PCT, should then arrange for MrsZ's eligibility to be reconsidered against the amendedcriteria, using information available about her conditionand needs while in the nursing home. It should write toexplain to Mr Z and to me the reasons for its newdecision: if it is that she should have been deemedeligible for care for all or part of the time she was in thenursing home it should pay to her estate a sum sufficientto ensure that it is no worse off than it would have beenif the NHS had funded her nursing home care for theappropriate period. The new Authority should alsodevise a scheme to identify any patients who may havebeen wrongly refused NHS funding for in-patientcontinuing care in its area, and liaise with other NHSbodies to ensure that appropriate recompense is made.

Findings (ii)41. Were funding arrangements reviewed afterMrs Z's fall and re-admission to hospital in late 1998? Itappears that her mobility was significantly reduced following her hip fracture. The Authority would not itselfassess Mrs Z's clinical condition and needs, but rely onthe Trust and Social Services to do that. It would needto make sure that her eligibility for NHS funding wasreconsidered in the light of that. The Authority says thatit did ask the Trust to reassess Mrs Z in November

Annex B Case No. E.208/99-00 • NHS Funding for Long Term Care • February 2003 11

Annex BCase No. E.208/99-00

Funding for a patient'scare in a nursing homeComplaint against:

The former Dorset Health Authority (theAuthority) and Dorset HealthCare NHSTrust (the Trust)

Complaint as put by Mr X1. The account of the complaint provided by Mr X was that his father, (Mr X senior), suffered fromAlzheimer's Disease. In December 1997 his father wasadmitted to a nursing home in Hampshire (the NursingHome), initially for respite care. In February 1998 ateam which included Trust staff decided that Mr Xsenior did not meet the Authority's eligibility criteriafor the provision of NHS-funded in-patient continuinghealth care. He remained at the Nursing Home until itsclosure in February 2000, with his care being fundedby means-tested Social Services benefits and his ownresources. From 2 February 2000 until his death inFebruary 2001, he resided at another nursing home inDevon, where his care continued to be funded in thesame way. In January 1998 Mr X suggested to theAuthority that the NHS should be responsible for funding his father's long-term nursing care. TheAuthority explained that if a person were sufficiently illto require NHS care, then that would be provided within a local hospital; its policy was to fund nursinghome placements only if there was no suitable hospital or other in-patient facility available. The outcome of Mr X senior's assessment meant thatresponsibility for funding his care rested with the localauthority. Mr X was dissatisfied with the Trust's finalreply. On 22 April 1998 he made a request for an independent review (IR), principally on the basis thatthe Authority's criteria for funding long-term in-patientcontinuing health care were more restrictive thanallowed for in national guidance. After a furtherattempt at local resolution he made a second requestfor an IR. The Authority closed its file in April 1999because Mr X had not clarified his outstanding concerns. Mr X remained dissatisfied.

2. The complaints investigated were that:

(a) the Authority's eligibility criteria for funding longterm NHS in-patient continuing health care wereunreasonably restrictive and did not reflect theprinciples laid down in the relevant NHS guidance; and

(b) the Trust failed properly to assess Mr X senior'seligibility for NHS-funded continuing in-patientcare.

Investigation3. The statement of complaint for the investigation was issued on 8 November 2000.Comments were obtained from the Trust and theAuthority and relevant documents, including clinicalrecords, were examined. I have not included in thisreport every detail investigated; but I am satisfiedthat no matter of significance has been overlooked.

National guidance Eligibility criteria - health care needs4. In 1995 the Department of Health issuedguidance HSG(95)8 on NHS responsibilities for meeting continuing health care needs. The guidancedetailed a national framework of conditions for allhealth authorities (HAs) to meet, by April 1996, indrawing up local policies and eligibility criteria forcontinuing health care and in deciding the appropriatebalance of services to meet local needs. The guidancestipulated that the NHS had responsibility for arranging and funding continuing in-patient care, on ashort or long-term basis, for people:

'…. where the complexity or intensity of their medical,nursing care or other care or the need for frequent noteasily predictable interventions requires the regular(in the majority of cases this might be weekly or morefrequent) supervision of a consultant, specialist nurseor other NHS member of the multidisciplinary team….

'…. who require routinely the use of specialist healthcare equipment or treatments which require thesupervision of specialist NHS staff.

'....who have a rapidly degenerating or unstable condition which means that they will require specialistmedical or nursing supervision.'

The in-patient care might be in a hospital or in a nursing home.

5. In further guidance, EL(96)8, in February1996 the Department of Health said:

'…. It will be important that eligibility criteria do notoperate over restrictively and match the conditionslaid out in the national guidance. Monitoring [ofauthorities' criteria] raised a number of points whereeligibility criteria could be applied in a way which wasnot in line with national guidance:

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v) The funding arrangements were not reviewed whenher needs changed after her fall at the home, and re-admission to hospital.

33. This investigation is not about the actions ofthe Trust or Social Services: but about the Authority.However I will deal in turn with whether each of thesepoints indicates that the Authority acted unreasonablyin refusing to fund Mrs Z's continuing care. First I shalldeal with the point about compulsory admission. Mr Zis correct that had his mother been admitted compulsorily she would have been entitled to NHSfunding under the Authority's policy - but that wouldhave been only while she continued to require compulsory detention. The Appeal Court decision onthe Bournewood case meant that for a period, ataround the point when Mrs Z was admitted to hospitalin May 1998, the law was understood to mean thatpatients, who lacked capacity to consent to in-patientpsychiatric treatment, could not receive it informallyand the possibility of compulsory admission wouldneed to be considered. However by the time Mrs Zmoved to the nursing home in August 1998 the Houseof Lords had overturned the Appeal Court ruling. TheOmbudsman's Psychiatric Adviser points out that thewhole tenor of the Mental Health Act is to encouragevoluntary, rather than compulsory admission, wherepossible. I see no reason to believe that, even if Mr Zhad attempted to make an application for compulsoryadmission under the Act, during the period his motherwas in the home, the necessary medical recommendations would have been obtained, or thatthe Authority should have treated Mrs Z as if she wasor had been under compulsory detention.

34. Mr Z has also argued that because, in hisview, his mother should have been admitted compulsorily under Section 3 of the Act initially, hersubsequent care in the nursing home amounted toafter-care under Section 117 of the Mental Health Actand should therefore have been NHS-funded.However, even if Mrs Z had been admitted compulsorily in April/May 1998, that would not havemeant that all her subsequent care had to be NHS-funded, but only that which could properly be regarded as after-care and only for as long as after-care was needed. Furthermore I have noted thefindings of the LGO about the actions of the ASW inApril (paragraph 15). Even though the Court of Appealjudgment in the Bournewood case would have made itmore likely that someone such as Mrs Z was admittedcompulsorily while it was regarded as providing legalprecedent, the fact that it was later overturned meansthat the law never prevented informal admission inthe circumstances concerned. I cannot see then thatthe Authority can be criticised for not accepting that

Mrs Z should have been compulsorily admitted to hospital under Section 3 and that her nursing homecare amounted to after-care.

35. I turn now to the Authority's criteria and theimplications of the Coughlan judgment. That was givenin July 1999 i.e. after Mrs Z had first been assessedand admitted to the nursing home in August 1998. Icannot therefore expect the Authority to have takenaccount of it when Mrs Z was first assessed. I canhowever expect it to have taken account of previousDepartment of Health guidance, especially HSG 95(8) -paragraph 4. I was concerned that whilst the first twoof the Authority's criteria for full NHS funding (i.e. forGroup 1) state that the possible site of care includes aspecialised nursing home, they are defined in such away as to mean that care could only be provided in hospital i.e. patients must require constant availability of on-site specialist medicalexpertise 24 hours a day or highly complex or specialist equipment to maintain life (which could notbe provided outside hospital). The third criterion doesseem to leave some scope for patients who do notrequire hospital care, depending on how the term'specialist' is interpreted. However even in its comments to this Office, the Authority seems to suggest that the fact that Mrs Z did not require on-sitemedical provision is particularly significant in suggesting that she did not qualify for full NHS funding: however, some patients who do not requirethat level of care could still be eligible under HSG95(8). It therefore seems to me that the criteria andthe way they were applied were not consistent withnational guidance.

36. Following the Coughlan judgment authoritieswere asked to satisfy themselves that their criteriawere in line with the judgment and, where they wererevised, to consider what action was needed to reassess patients against the new criteria. Here wasan opportunity for the Authority to review its criteria.Although the Authority told me that the legal advice itreceived was that the Coughlan judgment did not havea bearing on Mrs Z's case: when I saw the adviceitself, it was not as clear cut as that. Furthermore Ifind it impossible to see that the Authority's criteria,which were not changed in the light of the Coughlanjudgment, are compatible with it. Patients such as Mrs Z judged to be in Group 2, had been assessed bythe Authority as having 'multiple and complex nursingand medical problems' and were described as requiring 'an intensive and complex personal carepackage beyond the customary level of care offered by[a nursing home].' I cannot see how the total amountof nursing care such a patient would need would belikely to be merely incidental or ancillary to the

12 February 2003 • NHS Funding for Long Term Care • Annex B Case No. E.208/99-00

.… •• an over reliance on the needs of a patientfor specialist medical supervision indetermining eligibility for continuing in-patient care. There will be a limited number ofcases, in particular involving patients not underthe care of a consultant with specialistresponsibility for continuing care, where thecomplexity or intensity of their nursing or otherclinical needs may mean that they should beeligible for continuing in-patient care eventhough they no longer require frequentspecialist medical supervision. This issue wasidentified by the Health Service Commissioner inhis report on the Leeds case and eligibilitycriteria should not be applied in a way to rigidlyexclude such cases.'

6. In August 1999 the Department of Healthissued further guidance on continuing health care in acircular HSC 1999/180. This was in response to aCourt of Appeal judgment in the case R v. North andEast Devon Health Authority ex parte Coughlan (theCoughlan case). That judgment summarised its conclusions as follows:

'(a) The NHS does not have sole responsibility fornursing care. Nursing care for a chronically sick person may in appropriate cases be provided by alocal authority as a social service and the patient maybe liable to meet the cost of that care according to thepatient's needs…. Whether it was unlawful [to transfer responsibility for the patient's general nursing care to the local authority] depends, generally,on whether the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a dutyto provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can beexpected to provide. Miss Coughlan needed servicesof a wholly different category....

The Department's guidance included in its descriptionof the judgment:

'(b) The NHS may have regard to its resources indeciding on service provision.

'(c) …. HSG(95)8 …. is lawful, although could beclearer.

'(d) Local authorities may purchase nursing servicesunder section 21 of the National Assistance Act 1948only where the services are:

(i) merely incidental to the provision of theaccommodation which a local authority is under

a duty to provide to persons to whom section 21refers; and

(ii) of a nature which it can be expected than anauthority whose primary responsibility is to provide social services can be expected to provide.

'(e) Where a person's primary need is a health need,then this is an NHS responsibility.

'(f) Eligibility criteria drawn up by Health Authoritiesneed to identify at least two categories of personswho, although receiving nursing care while in a nursing home, are still entitled to receive the care atthe expense of the NHS. First, there are those who,because of the scale of their health needs, should beregarded as wholly the responsibility of a HealthAuthority. Secondly, there are those whose nursingservices in general can be regarded as the responsibility of the local authority, but whose additional requirements are the responsibility of theNHS.'

Authorities were advised to satisfy themselves thattheir continuing and community care policies and eligibility criteria were in line with the judgment andexisting guidance, taking further legal advice wherenecessary. Where they revised their criteria theyshould consider what action they needed to take to re-assess service users against the revised criteria.

7. A Royal Commission on Long Term Care hadreported in March 1999. That had recommended thathousing and living costs for those in long term careshould be paid for by individuals according to theirmeans, but that the cost of necessary personal careshould be met by the state. In England the government decided to adopt a rather differentapproach: from October 2001 the NHS has fundedcare in nursing homes provided by registered nurses(for those who would otherwise have to pay): but notall personal care provided by other staff.

Responsible authority8. In 1993 the Department of Health issuedguidance on establishing district of residence: thehealth authority where the person was usually resident was responsible for funding care. The guidance explained that where a placement by SocialServices was temporary, then the health authority ofusual residence remained responsible for health carefunding. If a permanent placement in a home wasfunded totally by a health authority outside their area,then they remained responsible for funding: otherwisethe health authority in which the home was situatedbecame responsible.

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The oral evidence of the Authority'sContinuing Care Manager27. The Authority's Continuing CareManager told the Ombudsman's InvestigatingOfficer that the leaflet describing the Authority'scontinuing care review procedure had been widelyavailable on all hospital wards where it was likely tobe needed. The admission to the second Hospital inlate 1998 was for a purely orthopaedic condition anddid not have any effect on Mrs Z's mental healthneeds.

Investigation by the LGO concerninginformation given to Mr Z about thefinancial implications of Mrs Z's admission to a care home 28. The LGO found that Mr Z had a meeting withthe Social Services Care Manager on 22 May 1998 andhe was given a copy of the publication 'Care Servicesand Homes' (Berkshire - 1996/7) and a copy of theDepartment of Health booklet 'Moving Into a CareHome - Things You Need to Know'. The LGO was satisfied that the publications provided sufficientinformation and concluded that there was 'ample evidence that Mr [Z] was made aware of the financialimplications and the possibility of a legal charge forresidential accommodation....'.

Advice of the Ombudsman's Adviser onpsychiatry29. The Ombudsman's Psychiatric Adviser commented that the whole tenor of the Mental HealthAct is to encourage voluntary, as distinct from compulsory, admission. Until medical recommendationshave been made no one can apply for compulsoryadmission because any application must be founded onsigned medical recommendations in the correct form.In Mrs Z's case no recommendations were made andtherefore the question of advising the nearest relativeof the right to make an application did not arise. Ifdoctors decide against making a recommendationneither the ASW nor the nearest relative can compelthem to do so. In terms of clinical practice he wassatisfied that the doctors acted correctly.

Advice of the Ombudsman's Adviser onmental health nursing30. The Ombudsman's Adviser on mental healthnursing matters commented that when Mrs Z wasadmitted to the Hospital on 23 May 1998, she wasadmitted as an 'informal' patient. Mrs Z met the criteria for Group 2 because she was immobile, suffered with dementia and displayed challengingbehaviour that required nursing/residential accommodation and she needed therapeutic support

from appropriately qualified staff. Mrs Z did notrequire 24 hour patient care in a hospital environment. In the view of the adviser, Mrs Z fell intoGroup 2 of the Authority's criteria.

31. Turning to the question of why the Authoritydid not require or arrange for another formal assessment of Mrs Z's needs before discharge fromthe second Hospital. She was admitted to that hospital in November 1998 because she requiredsurgery on her hip. Mrs Z was immobile and her mental state was stable. The advisor said that therewas no reason for her not to return to her placementin the nursing home.

Findings (i)32. Mr Z has put forward a number of argumentsto support his contention that the Authority shouldhave funded his mother's nursing home care in itsentirety. His main arguments are:

i) That Mrs Z's condition at the time of the initial assessment, and at all times after, was suchthat she should have been admitted compulsorilyunder the Mental Health Act to the Hospital, in whichcase she would have been entitled, as of right, to havehad her after-care fully funded (paragraph 17). Therights of the nearest relative should have beenexplained to Mr Z and a failure to do so denied him theopportunity to apply for Mrs Z to be admitted underSection 3 of the Act, which, if successful would haveresulted in 100% NHS funding. That the manner ofMrs Z's admission to the Hospital, and the fact thatshe was in a locked ward, amounted to compulsorydetention and negated the proposition that she was aninformal patient; consequently she was entitled to100% NHS funding.

ii) Her needs were such that she qualified for 100%NHS funding; and various Court judgments - particularly the Coughlan judgment - support his case.

iii) That the NHS had an obligation to fund Mrs Z'snursing home care because, were it not for the fallsshe sustained in the Hospital, she would not haveneeded to go to the nursing home.

iv) That essential information about the financial consequences of Mrs Z's admission to the nursinghome were not provided to Mr Z before Mrs Z's discharge from the Hospital. Also he was not madeaware of the continuing care review procedure untilafter Mrs Z had been discharged from hospital when itwas too late for him to request a review.

Annex B Case No. E208/99-00 • NHS Funding for Long Term Care • February 2003 13

9. However in 1998 a guidance note HSC1998/171 was issued to NHS bodies on allocation offunds to HAs and Primary Care Groups (PCGs) in 1999-2000. This said that HAs would 'continue to be primarily responsible for all those resident in theirboundaries' and linked their responsibilities topatients registered with GPs which were part of PCGsfor which HAs were responsible. In 1999 Primary CareTrusts (PCTs) were being established and regulations(The PCTs (Functions) (England) Regulations 2000)determined that a PCT was responsible for fundingcare for patients of GPs within the PCT's remit. Thoseregulations came into force in April 2000.

10. A replacement for the 1993 guidance on district of residence (paragraph 8) was issued in draftform in October 2002.

Local guidance 11. In April 1996, the Authority published itsoriginal policy and eligibility criteria for the provisionof continuing health care. A revised version, underwhich Mr X senior was first assessed, was publishedin April 1997. It included:

'Health Authority Responsibility2.2 The Health Authority sees as its responsibility theprovision of continuing in-patient or residential carefor people who:-

• need regular specialist medical or nursingsupervision or treatment; or• have complex medical, nursing or other clinical needs; or• are likely to die in the very near future andfor whom discharge from hospital would beinappropriate.

'2.3 The Health Authority is committed to arrangingand funding continuing in-patient or residential carefor people who have such needs. Explicit eligibility criteria are contained in each of the care group sections which follow….

'Nursing Homes2.19 People in nursing homes are funded either privately or through the local authority….Exceptionally the placement might be funded by theNHS where no suitable hospital or other in-patientfacility exists…. The Health Authority will not fundnursing home placements other than in the exceptionalcircumstances described above....

'Older People Suffering From Mental Illnessor Dementia5.1 The Health Authority will continue to fund continuing care for people who meet the eligibility

criteria set out below. The policy and criteria outlinedbelow apply to older people suffering from dementiaand those with severe functional mental illness….

'In-patient Continuing Care5.2 People will be provided with NHS continuing in-patient care if, following clinical assessment, one ormore of the following apply:

a) The person's behaviour is extremely restlessand in any other residential setting they wouldbe at risk.b) The person's behaviour is highly aggressive,either physically or verbally, to such an extentthat it requires specialised multi-disciplinaryteam management, including behaviouralstrategies, in a controlled environment.c) The person's behaviour is highly uninhibitedand could not be managed in any other residential setting.d) The person has difficult behaviour coupledwith heavy physical dependency requiringactive regular supervision (weekly or more frequently) by a consultant.e) The person requires secure care under HomeOffice Regulations.f) After acute treatment or palliative care inhospital or hospice, the person is likely to die inthe very near future and discharge from [NHS]care would be inappropriate.

'5.3 In Dorset such provision will usually be made in alocal NHS facility, either a small residential unit or aspart of a community hospital. Clinical management willin all cases be by a consultant psychiatrist.'

Annex four to the policy lists the services then purchased to meet needs in the area. It indicates thatthe Authority funded 131 continuing care beds forolder people suffering from mental illness or dementia.

Mr X's concerns12. In a letter to this Office on 13 June 2000, Mr X summarised his complaints as being:

'The Dorset Health Authority misled me, through protracted correspondence and prevarication to conclude that they were responsible for meeting myfather's continuing health care needs. It was onlyafter many months of delay that their convenor….refused to grant me an independent review on thegrounds that the [Authority] were not, in fact, theresponsible authority.

'I contend therefore that either [the Authority] weredeliberately obstructive with the intention of

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'[Mr Z] subsequently advised the Authority that [Mrs Z]had been discharged from the [second] Hospital backto [the nursing home]. Following [Mrs Z's] return to[the nursing home], [Mr Z] engaged in considerablecorrespondence with the Authority regarding whoshould bear responsibility for paying for [Mrs Z's]care. The Authority continued to maintain that [Mrs Z]did not qualify for 100% care, and this has remainedthe Authority's position throughout this case.

'In correspondence entered into in July/August 1999,[Mr Z] raised the issue of the [Coughlan judgment]….[The Authority] sought several legal opinions aboutthe judgment, but was advised that [it] did not have abearing on [Mr Z's] mother's case. [Mr Z] was advisedof this opinion in several letters from the Authority.

'On [16 January 2000], the Authority received a formalrequest from [Mr Z] for an [IR] of his complaint thatthe Authority would not fund 100% of [Mrs Z's] care.

'After taking professional advice and consulting withan Independent Lay Panel Chairperson, the Authority'sConvener advised [Mr Z] that a Panel would not beconvened. The Convener and the Chairperson weresatisfied that the Authority had made its decisionregarding funding in accordance with the ContinuingHealthcare Criteria. [Mr Z] was advised that if he wasunhappy with the convener's decision he couldapproach the Health Service Ombudsman.

'On [25 November 2000], [Mr Z] contacted theAuthority again, to advise that he had approached theOmbudsman. [Mr Z] also requested a reassessmentof his mother's needs, as her condition was deteriorating very rapidly. The Authority advised [Mr Z] that [Mrs Z's] needs would be reviewed by.…Social Services, and that the Authority would respondto any reassessment. Unfortunately, Mrs Z sadlypassed away on [26 November 2000].'

23. The Authority also commented as follows:

'The Authority does not feel that this complaint is justified, and does not feel that it has acted unreasonably in refusing to fund 100% of [Mrs Z's]continuing care.

'….In relation to [Mrs Z's] admission to anorthopaedic ward at the [second] Hospital inNovember 1998, the Authority is satisfied that it wasappropriate for [Mrs Z] to return to [the nursinghome]. [Mrs Z's] admission to the [second] Hospitalwas as a result of a fall at [the nursing home], andwas not related to the deterioration in her mentalhealth. During her stay at the [second] Hospital, the

Authority contacted the hospital to confirm thatassessments were taking place. The Authority wasanxious to ensure that any discharge took account of[Mrs Z's] condition. The Authority was assured thatthe discharge back to [the nursing home] was themost suitable and appropriate destination. Therefore,the Authority feels that it was not necessary toarrange reassessment of [Mrs Z's] needs followingher second hospital admission in 1998, as that admission concerned her physical rather than hermental well-being. It was felt that return to [the nursing home] was in [Mrs Z's] best interests and wasthe proper course of action under the circumstances.'

The Authority Director's oral evidence24. The Director told the Ombudsman'sInvestigating Officer the decision that Mrs Z qualifiedfor only part funding by the Authority stemmed fromthe Consultant's clinical assessment of her condition.The Consultant was firmly of the view that Mrs Z's condition had not necessitated formal admissionunder the Act. She had no previous history of mentalillness and her problems were largely age related. Onthe basis of the Consultant's assessment Mrs Zseemed to fall clearly into the category of patientswith senile dementia whose confusion and challengingbehaviour could not be managed in the community andwho needed nursing care in a specialised nursinghome at a level over and above that which a generalnursing home might provide. It was in recognition ofthat extra element of nursing care that the Authoritycontributed towards the costs of Mrs Z's care.

25. The Director acknowledged that if Mrs Z hadbeen admitted under Section 3 of the Act she wouldhave been entitled to have her nursing home care fullyfunded.

26. Mrs Z's needs would have been kept underconstant review and a formal reassessment couldhave been instigated at any time by Social Servicesstaff, her GP or the nursing home. In addition to thatshe would have been subject to routine annualreassessments. The primary function of anyreassessment was to ascertain whether there was aneed to amend the care she was receiving. Secondaryto that there was the issue of funding. In any casewhere the care was changed, those responsible wouldnotify the Authority if it was considered that the funding arrangements might no longer be appropriate.Mrs Z's care needs had been reassessed while shewas in the second Hospital. There had been no significant change in her mental condition at that time.


frustrating my legitimate complaint, or .... they weregrossly incompetent if they really were unaware of thegeographical and administrative boundaries of theirown jurisdiction....

'....My original complaint was that my father was entitled to fully funded continuing health care as hewas suffering from a disease and that the eligibilitycriteria against which he was assessed were unlawfulin that they did not accord with published guidelines....

'The (later) judgment .... and the subsequent AppealCourt ruling .... in Coughlan, vindicates my contentionthat my father always was, and remains, entitled toreceive fully funded NHS nursing care ....'

13. A letter dated 18 October 2000 from Mr X tothe Ombudsman included:

'....my father is in the final stages of Alzheimer'sDisease.... He.... requires 24-hour nursing care. Thelaw says.... he is entitled to receive that care free ofcharge from the NHS….

'[The Authority's refusal to fund his care] is unlawfulbecause in July 1999 the Court of Appeal decided thatMiss Pamela Coughlan was entitled to have all hercare costs met by the NHS. In their judgment theirLordships concluded that a local authority may purchase "nursing services merely incidental or ancillary to the provision of (the) accommodation…".Their Lordships added "Miss Coughlan needed services of a wholly different category". Clearly MissCoughlan's care was not considered "merely incidentalor ancillary" to her need for accommodation and shewas therefore entitled to receive NHS-funded care.

'In fact it is the law that if the primary reason for beingin a nursing home is to meet a health, not a "social"need, then all care must be free....

'A comparative analysis between the care supplied toMiss Coughlan and to [Mr X]…. shows conclusivelythat there is no fundamental difference whatsoeverbetween the nursing services supplied to [Mr X] andthose supplied to Miss Coughlan….

'The Appeal Court did not create new law, but simplyclarified the existing law. My father is therefore entitled to receive full retrospective care funding fromthe date he first entered [the] Nursing Home inDecember 1997. His daily nursing records show thathis needs are basically unchanged and illness was,and is, his sole reason for being in a nursing home. Inother words, had he not developed Alzheimer'sDisease he would have remained in his own home....'

Correspondence and key events14. I set out below a summary of the key correspondence and events.

1997Mr X senior lived with his wife in Dorset. He sufferedfrom Alzheimer's Disease. From July 1997 he receivedperiods of assessment and respite care by the Trust inWimborne, under the care of a consultant in the psychiatry of old age (the consultant).

1 December 1997Mr X senior was discharged home after a period ofrespite care. Subsequently Mr X expressed concern toNHS staff about his mother's ability to continue caringfor his father, saying he felt that long term care wasneeded.

19 December 1997Mr X senior was admitted to the Nursing Home initially for a four week placement of respite care,organised by Dorset Social Services.

199813 January 1998Mr X wrote to Social Services saying that there was noquestion of his father being able to return home at theend of the planned period of care on 16 January. Hesaid he felt that his father's long term care was theresponsibility of the NHS not Social Services. He saidhe had been in touch (where Mr X senior receivedrespite care in Wimborne) about the situation. Mr Xsenior remained in the nursing home as a long termresident.

26 January 1998After speaking to Mr X on the telephone, theAuthority's contracts manager wrote to the Trustabout the arrangements for Mr X senior.

27 January 1998Mr X wrote to the contracts manager expressing theview that as Mr X senior was suffering from an illness,the Authority - rather than Social Services - had astatutory duty to fund his long-term nursing care.Three days later he sent the contracts managerinvoices for his father's care at the nursing home, andrequested that they be settled by the Authority onbehalf of the NHS.

6 February 1998The contracts manager replied reiterating what hehad said in the previous telephone call. He said thatSocial Services departments were responsible forfunding care in nursing homes. If someone was sufficiently ill to require NHS care, then that would be

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not going,' three times. She would not have gone if hehad not forced her out of her chair and taken her tothe ambulance. The ambulance crew had noted Mrs Z's reluctance in their records (Note: TheAmbulance Service records stated '[Mrs Z] refusing totravel and is very confused'). He understood that aperson could not lawfully be admitted as an informalpatient without that person's consent. In support ofthat view he referred to the Court of Appeal judgmentof December 1997 (paragraph 16).

20. At no time while Mrs Z was a patient in theHospital had anyone provided written informationabout her future care or about the financial implications of her having to go into a nursing home.Neither was he given any information about theAuthority's review procedure for decisions about funding. There had been mention of a 'funding package' but nothing had been said about Mrs Z having to pay anything towards that. At the date ofMrs Z's discharge to the nursing home Mr Z stillexpected all her care to be funded by the authoritiesconcerned.

21. After his mother was admitted to the secondHospital Mr Z asked repeatedly for her needs andfunding to be reassessed but to the best of his knowledge that was never done. (Note: The Authorityprovided evidence that it did request a reassessmentof Mrs Z while she was in the second Hospitalbetween 4 November and 18 November 1998, and thatit was told that she was able to return to the nursinghome.) He considered that his mother's circumstanceswere identical in all material respects to Miss Coughlan's (paragraph 6).

The Authority's response to theStatement of Complaint22. In its formal response to the complaint to theOmbudsman the Authority wrote:

'[Mrs Z] was admitted to [the] Hospital on [23 May1998]. [Mrs Z] was diagnosed as suffering fromModerate Vascular Dementia. It was planned that[Mrs Z] would enter [a residential home for the elderly mentally ill (EMI)] (the residential home) on[17 July 1998]. However, following a fall at [the]Hospital, [Mrs Z] was re-assessed and it was determined that her physical condition was such thatshe required care in a Nursing Home with EMI facilities.

'Arrangements were subsequently made for [Mrs Z] tobe placed in [the nursing home], which is a registeredEMI Nursing Home, once a bed became available. Anapplication for Joint Funded Placement was made on

behalf of [Mrs Z] on [21 July 1998]. It was agreedthat.… Social Services would pay £366 per week and[the Authority] £84 per week. As [Mrs Z] had a property to sell, [the] Borough Council would require acontribution from her towards the costs of her care.'[Mr Z] has contended that [Mrs Z] should have qualified for 100% Authority funding and that.…Social Services should not have had to bear anyresponsibility for the cost of her care. The Authorityhave engaged in considerable correspondence sinceAugust 1998 with [Mr Z], in order to explain why it isconsidered that [Mrs Z] only qualified for a joint funded placement, and not a fully NHS-funded placement.

'On [24 August] [Mrs Z] was allocated a place at [thenursing home] and arrangements were made by [the]Borough Council to place a charge on [Mrs Z's]property, until her property could be sold.

'[Mr Z] has argued that it was out of medical necessity, following a number of falls at [the] Hospital,that [Mrs Z] had to enter [the nursing home], ratherthan [the residential EMI home] where he had intended to place [Mrs Z] following her discharge from[the] Hospital. It has been [Mr Z's] belief that hismother should have been assessed under Group 1 ofthe.… Authority's published criteria [see paragraphs15 to 18 above].… He has also stated that he felt that[Mrs Z] required on-site medical expertise 24 hours aday.

'However, the Authority has explained on severaloccasions to [Mr Z], that his mother was assessed asmeeting the criteria for Group 2 of the Authority'sContinuing Care Needs and as such her funding was tobe shared by the Authority and [the] Borough Council.This arrangement was agreed by the Joint FundedPanel, which met on [21 August 1998].

'In November 1998, [Mrs Z] suffered a serious fall at[the nursing home], and [Mr Z] once again attestedthat his mother should qualify for 100% funding of hercare.

'At this stage the Authority sought legal advice, andfurther advice from the Authority's medical adviser. Itwas explained to [Mr Z] that the assessment of hismother's requirements was made by [theConsultant]…. who was aware of the criteria for continuing care, which was why an application forjoint funding was made. It was also pointed out to [Mr Z], that the medical care provided to [Mrs Z] wasnot 24 hour care. Rather it was care appropriatelyprovided through Primary Care, by [general practitioners] on a visiting basis only.


provided in a hospital. Social Services had confirmedthe assessment previously made by the consultantthat Mr X senior did not require admission to an NHSin-patient facility for his continuing care.Responsibility for funding of the care therefore restedwith the local authority. He returned Mr X's invoices.He also sent Mr X a copy of the Authority's eligibilitycriteria for continuing in-patient care.

9 February 1998Mr X rejected the contracts manager's contention thatthe Authority was not responsible for funding Mr Xsenior's care, on the basis that his father appeared tomeet some of the Authority's criteria for continuing in-patient care.

10 February 1998The consultant and a community psychiatric nurse(CPN) reassessed Mr X senior at the nursing homeand said that he did not meet the Authority's criteriafor NHS-funded continuing care.

11 February 1998The contracts manager informed Mr X that the consultant's most recent assessment of Mr X seniorhad been that NHS care was not appropriate. He saidagain that the Authority expected any Dorset residentwho met the criteria for continuing care to be admitted as an in-patient to an NHS facility, and thatthe Authority would not expect to meet the costs of anursing home placement, as those were funded bySocial Services.

23 February 1998Mr X wrote to the Authority's chief executive, expressing dissatisfaction with the contracts manager's decision that Mr X senior's care was ultimately the responsibility of Social Services. Hereiterated his view that as his father was clinically ill,his nursing care and treatment was the responsibilityof the NHS and should be provided free of charge.

27 February 1998The Authority's chief executive explained to Mr X that:

• It was the Authority's policy to fund placements in nursing homes only if there wereno suitable hospital or other in-patient facility,because there were sufficient beds in theAuthority's area to meet the needs of all thosepatients requiring NHS continuing in-patientcare;

• Mr X senior was placed in a nursing homeafter the consultant assessed him as notrequiring NHS in-patient care;

• If Mr X senior's health needs changed in thefuture and, following admission to hospital, hewas reassessed as meeting the criteria for in-patient care, the Authority would expect him toremain in hospital;

• The NHS Community Care Act 1990 gave localauthority and Social Services departmentsresponsibility for funding nursing home placements, taking into account the financialmeans of the individual.

5 March 1998Mr X replied contending that the Authority's policy wasin breach of their own published criteria and NHSguidelines. He pointed out that authorities could payfor nursing home places.

22 April 1998After exchanging further correspondence with theAuthority's chief executive Mr X wrote to theAuthority's convener (the convener), requesting an IRand explaining his chief concerns:

1. The Authority's criteria for continuing in-patient care were not applied correctly in hisfather's case. He had not seen a report of his father'sinitial assessment by the consultant and did not,therefore, know how it had been carried out or onwhat basis his father was assessed as not meetingthe criteria;

2. The Authority's criteria were more restrictivethan allowed for in the NHS national guidance. Hesaid that neither of the first two bulletted points of 2.2in the Authority's criteria (paragraph 11) made it clearthat supervision required was for weekly or more regular interventions and that supervision coveredspecialist equipment as well as treatments: nor didthat section reflect the national guidance about peoplewith rapidly degenerating conditions. On sections 5.1to 5.4, he pointed out that limiting the reference tosupervision to that by consultants was more restrictive than the national guidance and referred toEL(96)8 (paragraph 5). He expressed concern aboutreferences in paragraph 5.2 to the person being atrisk 'in any other residential setting'. That seemed toimply that people could only meet the criteria if admitted to an NHS facility. He said that if, as that andthe contracts manager's letter suggested, theAuthority's intention was to never fund placements innursing homes then that was out of line with theAuthority's policy and with national guidance.

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'….I can confirm that at no time has the HealthAuthority refused to allow a reassessment to be carried out, the timing of assessments is carried outby those professional, clinical and operational staffclosest to the care of the client involved. The HealthAuthority will respond to any reassessment when carried out.'

26 November - Mrs Z died.

Legislation on Compulsory Admissionunder the Mental Health Act13. The Act provides that applications underSection 2 (admission for assessment) and Section 3(admission for treatment) may be made by either anASW or a patient's nearest relative. In either case theapplication must be founded on written recommendations by two registered medical practitioners.

14. Section 118 of the Act made it a function ofthe Secretary of State to prepare a code of practice(the Code) for the guidance of medical practitionersand others responsible for the admission and treatment of patients under the Act. The Code statesthat compulsory admission powers should only beused in the last resort. Section 3 of the Act should onlybe used if treatment cannot be provided unless thepatient is detained. Treatment or care should be provided in the least controlled and segregated facilities compatible with the patient's own health orsafety, or the safety of other people. In judgingwhether compulsory admission is appropriate,account should be taken of other forms of care ortreatment, including, where relevant, consideration ofwhether the patient would be willing to accept medicaltreatment in hospital informally.

15. An ASW has responsibility for co-ordinatingthe process of assessment. The ASW must attempt toidentify the patient's nearest relative and ascertain hisor her views. Where possible the ASW should informthe nearest relative of the reasons for considering anapplication for admission for treatment under the Actand of the effects of making such an application.Although the ASW is usually the right person to makean application, the ASW should advise the nearest relative of his or her right to make the application. TheASW must discuss with the patient's nearest relative the reasons for a decision not to make anapplication for admission to hospital, if requested toconsider such an admission by that relative. (Note: TheLGO concluded that there was no maladministration bythe ASW in this case in regard to Mr Z's complaint about her actions in April and May 1998).

16. Mrs Z was admitted to the Hospital after theCourt of Appeal decision in R v. Bournewood NHS Trustex parte L (2 December 1997), but before the House ofLords decision on that case on 25 June 1998. TheCourt of Appeal's view had been that patients wholacked capacity to consent to hospital admission couldnot receive treatment for mental disorder informallyeven though they had not expressed dissent. TheHouse of Lords overturned that judgment. As the current version of the code makes clear, if at the timeof admission the patient is mentally incapable of consent, but does not object to entering hospital andreceiving care or treatment, admission should beinformal. If a patient lacks capacity at the time of anassessment or review, it is particularly important thatboth clinical and social care requirements are considered. Account must be taken of the patient'sascertainable wishes and also of the views of immediate relatives on what would be in the patient'sbest interests.

17. Section 117 of the Act requires healthauthorities and social services authorities to provideafter-care services for any person normally residentin their area who is detained under Section 3, untilsuch time as the authorities are satisfied that the person concerned is no longer in need of such services. In February 2000 the Department of Healthissued guidance HSC 2000/003 on Section 117 aftercare following a High Court judgment in R v.Richmond LBC ex parte Watson, 28 July 1999. Thatsaid that authorities might not charge for residentialaccommodation provided as a part of after-care service under Section 117.

Mr Z's evidence18. Mr Z told the Investigating Officer that hehad been much relieved when Mrs Z was being admitted to the Hospital, but he had not then realisedthat if she had been admitted compulsorily, instead ofinformally, she would have qualified to have her continuing care fully funded by the NHS as part of aprogramme of after-care for a patient entitled to thatcare in accordance with Section 117 of the Act. Hebelieved that the Consultant had been willing to recommend compulsory admission but had been persuaded not to do so in order to safeguard theAuthority and Social Services from any financial liability for her continuing care. No one had told himthat, as Mrs Z's nearest relative, the Act gave him theright to make an application for admission.

19. Mr Z considered that he had been left noalternative but to force his mother to enter hospital.No alternative care had been offered. Mrs Z had beenvery resistant to leaving her house and had said, 'I'm


22 May 1998The Authority's assistant patient services managerreplied to Mr X that the first of the above concernsshould be put to the Trust's chief executive, as theconsultant who assessed Mr X senior was employedby the Trust. She advised Mr X to pursue his broaderconcerns with the Trust and Southampton and SouthWest Hampshire Health Authority, because Mr Xsenior had become a Hampshire resident once hisplacement in the Nursing Home became permanentand he registered with a Hampshire GP. The assistantadded that the Authority could consider Mr X's requestfor an IR of his concern that their criteria for continuing in-patient care were more restrictive thanallowed for in national guidance.

1 July 1998Mr X senior was discharged from the Trust's Old AgePsychiatry Service, as he no longer needed psychiatricinput.

Further correspondence with Mr X ensued.

1 September 1998The convener informed Mr X of his proposal to consider his request for an IR on the basis of Mr X'sconcern that the Authority's eligibility criteria for continuing in-patient care were more restrictive thanallowed for in national guidance. He sought Mr X'sconfirmation that he was happy with that proposal andrequested evidence that his father consented to himpursuing the complaint. (He did not receive a replyfrom Mr X.)

9 October 1998The convener informed Mr X that, as matters stood, hecould not proceed further with his request for an IR,as Mr X had failed to provide either agreement as towhich matters fell within the Authority's remit orevidence that his father supported the complaint.

11 October 1998Mr X informed the convener that he had replied to theconvener's letter of 1 September, but he hadaddressed the letter incorrectly. He confirmed that hewished to proceed with his complaint against theAuthority, he consented to contact with the Trust andsaid that he had power of attorney to act for his father.

20 October 1998The assistant patient services manager informed Mr Xthat a copy of his original letter of complaint (dated 22 April) had been sent to the Trust's chief executive,and that the convener was considering Mr X's requestfor an IR.

25 October 1998Mr X wrote to the Trust's chief executive, saying thathis complaint was not primarily that the Trust hadincorrectly applied the Authority's eligibility criteriafor the provision of continuing health care, but that thecriteria were unsound and fundamentally flawed.

26 October 1998The Authority sought confirmation from the South andWest Regional Office of the NHS Executive (RegionalOffice) that its current policy and eligibility criteria forcontinuing in-patient care were in accordance withnational guidance.

9 November 1998Regional Office told the Authority that in early 1996, ithad assessed the Authority's original policy and eligibility criteria and found it to conform to the national guidance (to which I have referred in paragraph 4). Having examined the revised version,Regional Office staff had concluded that it did notunduly restrict access to services.

20 November 1998The Trust's chief executive explained to Mr X that amulti-disciplinary team, led by the consultant,assessed Mr X senior at the nursing home on 10 February 1998 and decided that he did not meet thecriteria for NHS funding for care for older people suffering from mental illness or dementia. He also listed the criteria which would normally result in anindividual being provided with NHS continuing in-patient care. He explained that in-patient carewould have been arranged for Mr X senior if the teamhad felt that any of those criteria applied to him.However, the team felt that Mr X senior no longerneeded specialist psychiatric input and his psychiatric medication had been stopped.

2 December 1998Having taken clinical advice, the convener advised Mr X of his decision not to grant an IR at that stage.He referred the complaint for further local resolutionso the Authority could give a fuller explanation of thebackground relating to continuing care arrangements.

199917 February 1999The Authority's chief executive provided Mr X with afuller explanation of the background to the NHS andCommunity Care Act of 1990 in relation to continuingcare arrangements.

23 February 1999Mr X wrote to the convener, copying the letter to thechief executives of the Authority and the Trust. He

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of Mrs Z's admission to the Hospital with the NHSTrust responsible. He added, however, that theAuthority preferred that patients be admitted voluntarily where possible, so as not unnecessarily todeprive them of their liberty.

13 August - The Director told Mr Z that the Authorityhad received legal advice on the Coughlan judgmentand did not consider that it had a bearing on the funding of Mrs Z's care.

25 August - Mr Z asked the Director to explain whythe judgment was not considered relevant in hismother's case.

26 August - The Authority received a letter from itssolicitors with several pages of notes by thesolicitors on the Authority's criteria document in thelight of the Coughlan judgment. Those include acomment that one section of the document does 'notseem to be entirely in line with Coughlan' and inanother that the paragraph is 'contrary…. to thedecision in Coughlan'. It raises various questionsabout the criteria and arrangements for patientsconsidered to be in Group 2 (as Mrs Z was).

25 November - After obtaining further legal adviceon Mrs Z's circumstances the Director wrote to Mr Z reaffirming and '….bringing to a conclusion thedebate about.…' the Authority's position that hismother was correctly assessed as meeting theAuthority's criteria for Group 2 of its policy in respectof continuing health care needs at the time of Mrs Z'sadmission to the nursing home. The Authority hadobtained specific legal advice on Mrs Z's case inOctober 1999. That ended:

'You mention that [Mrs Z] meets Group 2…. of the[Authority's] criteria. It refers to patients whose confusion and challenging behaviour cannot be managed in the community and requires care in a specialised nursing home. This wording seems atodds with [Mrs Z's] position - and I am not sure I follow the distinction between specialised and specialist.…

'[Mrs Z] is clearly very dependent in terms of thedaily activities of life, but I imagine that if she wouldbe classified as 100% NHS many others would be aswell. She is clearly far less dependent on specialisedhealth input than Miss Coughlan. I imagine her needfor nursing attention is not "continuous and intense"(to use the court's phrase) and that her generalrequirement is for normal nursing home provision.

'[Mrs Z's] case is an interesting one to bear in mind

when considering the [Coughlan judgment].Presumably someone in her condition may reach astage of such continuous need as to entitle her to100% NHS-funded treatment. If so, do the criteriamake this happen?'

7 December - Mr Z wrote again to the Director, stating that in his opinion the Coughlan judgment wasrelevant as his mother's need for accommodationand support was primarily to enable her health needsto be met. The judgment required that care, accommodation and support should all be providedfree in those circumstances. Mr Z argued that therewas no obligation on his part as next of kin to moveher from the Hospital and that as she would be receiving free NHS round the clock nursing care inhospital, Social Services should not be involved in Mrs Z's care.

22 December - The Director told Mr Z how hecould pursue his complaint by asking for an IR underthe NHS complaints procedure.

16 January 2000 - Mr Z sent a full and detailed statement of his complaint to the Authority'sComplaints Manager. He alleged that the Authority, inconcert with Social Services, made a calculatedattempt to evade payment for long term care which itwas under a duty to provide. In May the BoroughCouncil wrote to Mr Z to say that, having liaised withthe Authority, they had been informed that theAuthority had reviewed Mrs Z's case and concludedthat she continued not to meet the criteria for 100%funding.

22 June - After seeking professional advice and consulting a Lay Chair the Convener wrote to Mr Z saying that he had decided not to convene an IRpanel. He considered that the Authority had clearly demonstrated compliance with its policy for continuing care and that establishing a panel wouldnot resolve the complaint.

25 July - Mr Z complained to the Ombudsman.

25 October - Mr Z wrote to the Authority's ChiefExecutive saying that Mrs Z was unlikely to livebeyond Christmas 2000 and asking him to arrange afurther appraisal of his mother's needs, which heregarded as purely palliative and thereby renderingher eligible for full funding.

21 November - The Chief Executive confirmed thata review of Mrs Z's needs would be carried out. Theletter stated:


referred to the initial judgment in the Coughlan case.He said that that clearly and categorically placedresponsibility for all nursing care upon the responsible health authority. He also expressed hisintention to seek professional advice concerning thelegality of the continued means-tested funding of hisfather's care by Dorset Social Services.

6 March 1999Mr X made another request to the Authority for an IR.By that time he summarised his complaint as, 'Inrefusing to fund my father's continuing health careneeds [the Authority] are in breach of their legal obligations under current NHS statute'. He referredagain to the initial judgment in the Coughlan case.

15 March 1999The Authority's convener asked Mr X to clarify his outstanding concerns in the light of the chief executive's detailed reply to Mr X of 17 February. Hesaid that a further request for IR could only be considered in relation to the original complaint.

22 April 1999Having heard nothing further from Mr X, the Authorityclosed its file.

27 April 1999Mr X complained to the Ombudsman about the actionsof the Authority, the Authority's convener and theTrust.

17 May 1999One of the Ombudsman's staff asked Mr X to providefurther information. Mr X did not reply to that letteruntil 14 February 2000.

20006 January 2000The owners of the nursing home informed Mr X of itsimminent closure. They said that they would liaise withMr X, the Authority and Social Services to ensure thatMr X senior was found a suitable home with theminimum amount of disruption.

7 January 2000Mr X asked the Authority's chief executive if Mr Xsenior could be reassessed against the NHS continuing care criteria. That letter included:

'In view of the ruling by the Court of Appeal in theCoughlan case, it appears that Alzheimer's patients inparticular are entitled to receive NHS care free ofcharge as there is a primary need for constant healthcare, thus the whole of that care must, according toGovernment guidance, be borne by the NHS.

'I would therefore be grateful if you would take thenecessary action to ensure that my father receives thelevel of care to which he is entitled…. funded by theNHS in accordance with current law.'

18 January 2000The chief executive of The New Forest Primary CareGroup wrote to Southampton and South WestHampshire Health Authority's commissioning manager.That letter included:

'I have asked [Mr X senior's GP] if he would liaise withDistrict Nursing and Dorset Social Services so that ajoint assessment [of Mr X senior] can be carried outas soon as possible.

'My understanding is that although Dorset SocialServices retain responsibility for [Mr X senior's] socialcare needs, the Southampton and South WestHampshire Health Authority and New Forest PrimaryCare Group have responsibility for meeting healthneeds if they are in line with the continuing care criteria....'

2 February 2000Mr X senior moved to a nursing home in Devon.

14 February 2000Mr X wrote to the Ombudsman with further information and explained his outstanding concerns.

February 2001Mr X senior died.

Complaint (a) The Authority's eligibilitycriteria are unreasonably restrictive anddo not reflect the principles laid down in the relevant NHSguidance

The Authority's comments15. A letter dated 29 November 2000 from theAuthority's chief executive to the Ombudsman included:

'…. I…. would wish to emphasise at an early stagethat, while [Mr X senior] was resident in Dorset whenhe entered respite care in…. [the] Nursing Home, on14 January 1998 he registered with [a GP] inHampshire, as the placement had become permanent.From 1 April 1999, as part of the changed arrangements for establishing Primary Care Groups,he became the responsibility of…. Southampton andSouth West Hampshire Health Authority. Our files indicate that [Mr X] did not contact [the Authority]about his father's care until 22 January 1998 when he

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27 September - Mr Z drew the LocalityCommissioner's attention to Section 117 of the Act,which he said placed a duty on health authorities andsocial services authorities to provide after-careservices for patients who have been detained inhospital under the Act. He said that Mrs Z had enteredhospital under the same circumstances as if she hadbeen compulsorily detained. He enclosed an invoicereceived from Social Services for Mrs Z'saccommodation in the nursing home.

7 October - The Authority said that following Mrs Z'sdischarge from the Consultant's care, it was now forMr Z to settle the invoice from Social Services for hiscontribution to Mrs Z's care in the nursing home.

8 November - Mr Z told the Locality Commissionerthat his mother had been admitted to the secondHospital as a result of a fall she had had at the nursinghome. As he did not expect her to be able to walkagain he considered that the case for full funding bythe Authority was even stronger.

11 November - The Authority's legal advisers indicated their agreement with the line being taken bythe Authority in respect of Mrs Z.

18 November - The Locality Commissioner told Mr Zthat a full reassessment of his mother's needs wouldbe carried out before she was discharged from thesecond Hospital. She reasserted the view that Mrs Z'sneeds on discharge from the Hospital were not suchas to qualify her for full NHS funding. Mrs Z did notneed 24-hour on-site medical cover. The Authority'spublic health adviser considered primary care services of the kind provided by her GP to be sufficient. Neither had Mrs Z needed palliative care ofthe kind envisaged in the Authority's Group 1 criteria,which applied to patients with very intensive needsduring the final stages of life.

21 November - Mr Z told the Authority that after having hip surgery his mother had returned to thenursing home but had lost all mobility.

22 November - Mr Z wrote to the LocalityCommissioner reiterating the view that, as theConsultant considered Mrs Z ill enough to be admittedcompulsorily to hospital, the Authority's own policyplaced it under an obligation to classify her as Group1, thereby entitling her to full NHS funding. He alsocontended that as Mrs Z's 'nearest relative' thoseresponsible for her admission were under a statutoryduty to inform him, before Mrs Z was admitted to theHospital, that he had the legal right to require that shebe admitted compulsorily. He considered that the failure so to advise him may have been deliberate.

8 December - Mr Z wrote once more to the LocalityCommissioner asking that his mother's needs bereassessed. He told her that he was suggesting toSocial Services that Mrs Z might return to her ownhome if all the care she needed could be provided inthat setting. If at any time in the future the situationbecame untenable he might apply for Mrs Z to be compulsorily admitted under the Mental Health Act,which would have the effect of forcing the Authority topay for any after-care.

14 December - Mr Z sent a further statement to theLocality Commissioner in which he wrote that he hadreceived a letter from the Consultant stating that Mrs Z had had a chronic mental disorder when he visited her on 30 April 1998. Mr Z repeated his contention that Mrs Z had qualified for compulsoryadmission to Hospital and that the full costs of hercare and treatment in the nursing home should befunded by the Authority.

4 February 1999 - The Locality Commissioner wroteto Mr Z saying that a colleague of hers had contactedthe second Hospital while Mrs Z was a patient thereand had been told that her needs had been reassessedand the decision made that she should be dischargedback to the nursing home. Any decisions aboutcompulsory admission under the Mental Health Actwould be 'under the direction and discretion of themental health team'. The Authority's Group 1 criteriaapplied only to patients whose detention under theMental Health Act continued in a nursing home orother long term setting. The mental health team hadnot indicated any need for Mrs Z to be so detained.

7 March - Mr Z replied that at no time before Mrs Zwas moved to the nursing home in August 1998 hadanyone told him or any other member of his familyhow Mrs Z's care and treatment in the home would bepaid for.

12, 19 and 25 July - Mr Z wrote further letters tothe Authority. He referred in some to the Coughlan judgment (paragraph 6), which he said supported hiscase. He complained that there had been a failure toinform him, as Mrs Z's nearest relative, of his right toapply for her to be admitted compulsorily. As a result,on 23 May 1998, he had been obliged 'to forcibly move[Mrs Z] from her home and thence to enter an ambulance which had been ordered'. Her admissionto the Hospital had therefore been involuntary.

5 August - The Authority's Director of Strategy andDevelopment (the Director) acknowledged Mr Z's letters and said that he was obtaining legal adviceabout the effect of the Coughlan judgment. Headvised Mr Z to pursue his concerns about the manner


spoke to [the contracts manager]. It appears that hewas in contact with Dorset Social Services prior tothat date….

'I consider that [the Authority's] eligibility criteria forfunding long-term NHS in-patient continuing healthcare are not unreasonably restrictive and reflect theprinciples laid down in the relevant NHS guidance.Extensive consultation took place before drawing upthe policy, as explained in my letter of 17 February1999 to [Mr X], and has taken place since. As a resultof [Mr X's] concerns [the Authority] contacted[Regional Office] for their view on the policy and criteria and received confirmation that it conformed tonational guidance and did not unduly restrict access toservices. The letter from [Regional Office's director ofpolicy], dated 9 November 1998 confirms this….

'….As the convener requested, [Mr X] was sent a further letter by me explaining the background to theNHS and Community Care Act 1990 in relation to continuing care arrangements. This is my letter of 17 February 1999.

'By this time the judgment in the case of R v. North andEast Devon Health Authority, ex parte Coughlan, hadbeen published and [Mr X] wrote to [the Authority](and others) to inform us that he was taking legaladvice as a result of that judgment. He also made afurther request for an [IR]….

'As a result of the Coughlan judgment and the contentsof [HSC(99)180] [the Authority] asked its legal advisers…. to examine the April 1997 Policy andEligibility Criteria for the Provision of ContinuingHealth Care and received confirmation in a letterdated 3 November 1999 that it was in accord with thespirit of the Coughlan judgment.

'Based on the recommendation made by [theAuthority's legal advisers] the Authority has, sinceNovember 1999, applied the eligibility criteria inaccordance with the Court of Appeal judgment as distinct from the precise wording of the policy document….'

16. The chief executive of the new Dorset andSomerset Health Authority (who had been the chiefexecutive of the Authority until its abolition at the endof March 2002) provided further comments in October2002. In those he said that:

'It was only in November 1999 that the former DorsetHealth Authority was advised that there might be adifficulty arising from the interpretation of the policyand eligibility criteria in the light of [the Coughlan

judgment]. In a letter of advice [from its solicitors] the former Dorset Health Authority was advised not toimplement any amendments until further guidancefrom the Department of Health was issued. Furtherlegal advice received in February 2000 confirmed thatany difficulties might lie in the interpretation of thepolicy rather than the precise wording of the policyitself….

'The above legal advice was received some time afterthe assessment of the eligibility of [Mr X senior] forcontinuing care was undertaken but it was taken intoaccount when the revised policy and eligibility criteriawere produced in 2001.'

Those comments also included:

'The former Dorset Health Authority undertook an in-depth review of its policy and eligibility criteria forcontinuing health care and published a revised document in December 2001. This review took intoconsideration the judgment of the Court of Appeal exparte Coughlan and the ensuing guidance from theDepartment of Health published in June 2001…. Theupdated criteria were examined and modified by thelegal advisors to the former Dorset Health Authoritybefore the final version was agreed.

'The review in 2001 acknowledged that the original criteria could give rise to an interpretation that wasrestrictive. The former Dorset Health Authority satisfied itself that the updated criteria agreed in 2001could not be applied in such a restrictive way.'

17. The legal advice received by the Authority inNovember 1999 included:

'….There is a danger in eligibility criteria defining"specialist" in extremely narrow terms. "Specialist"should not be assessed by looking at the level of qualification required for a particular task. Rather, itis necessary to look at the intensity, quantity, continuity and range of the nursing servicesrequired….

'….Although the judgment is not retrospective, it isone which is deemed to clarify the law and thereforeto say what the law has always been. It follows that ifanyone has paid for nursing care that ought to havebeen provided on the NHS then they may be entitled toreclaim the monies spent….

'Recommendations'….Even though I have identified parts of the policydocument that might be suitable for amendment, I donot recommend any immediate steps are taken to

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23 May - Mrs Z was admitted to the Hospital (whereshe stayed until she was discharged on 24 August),diagnosed with vascular dementia. (Note: Mr Z saidthat he had to physically coerce her to leave her homeand enter the ambulance.)

5 July - Mrs Z suffered a fall at the Hospital.

8 July - Mr Z complained to the General Manager ofthe Hospital (which at that time was managed byanother trust) about the fall that Mrs Z had had.

21 July - An application was made for Mrs Z to begiven a joint funded placement in a nursing home forelderly mentally infirm (EMI) people. The applicationincluded a detailed nursing assessment. She was saidto need 'all help with daily living, except feeding'.Compulsory admission, under Section 3 of the Act,was said to have been considered but not implemented.Mrs Z was described as resistant to help and needingsupervision if she was to take the medication sheneeded.

24 July - Mr Z told the Authority's ComplaintsManager that as a result of the fall his mother was nolonger fit enough to be transferred to a residentialhome, as previously planned.

17 August - Mr Z wrote to the Chief Executive of theTrust saying that he was unhappy with the reply to hiscomplaint. In the course of that letter Mr Z stated thathe had visited the nursing home on 17 July to discusshis mother's placement there. A member of SocialServices staff had been in contact with the Authorityand funding had been approved, but a place at thenursing home was not presently available. The lettercontinued 'It is my understanding that the Authority isresponsible for such funding as is necessary....However, it appears that [the Borough Council] will befunding the major portion of the care my mother willreceive in [the nursing home]. It is my consideredopinion that it is [the Authority] which should be paying in total.… since she now needs constant supervision to prevent injury to herself, I see no reason why.… Social Services should take responsibility for her care when, in fact, this presentsituation is caused directly by her stay in an NHS facility.'

Mr Z copied his letter to the Authority's LocalityCommissioner, saying that as the circumstances hadchanged and Mrs Z now needed nursing home care heexpected the NHS to pay for it.

21 August - Joint funding was approved for Mrs Z togo to the nursing home: £366 from Social Services and£84 from the Authority.

24 August - Mrs Z moved to the nursing home.

28 August - The Locality Commissioner sent Mr Z acopy of the Authority's policy (see paragraph 9) andwrote:

'You will see from [the policy] that the responsibilitiesfor health funding are determined by an assessmentprocess which looks at the health needs of an individual. In this sense it is the presenting conditionwhich determines needs and responsibility not themeans by which these arose. Your correspondencewith [the Trust] will no doubt continue to consider causation. For this reason I am unable to support yourview that the Health Authority is responsible for meeting the full [nursing home] costs. I believe theHealth Authority have responded in an identical wayas they would to any individual patient who presentedwith this mixture of need. Specialist nursing homecare fits clearly into the Group 2 criteria, which are forjoint funding arrangements.

'If you have concerns with how we have applied thecriteria in your mother's case, you may find it helpfulto follow the Review Process. I enclose a leafletwhich explains how this works. I should stress however, that the Review Process is only open to youwhile your mother remains an in-patient.…'

The leaflet that was enclosed described the procedurefor reviewing decisions on eligibility for NHS continuing in-patient care (paragraph 5).

10 September - Mr Z wrote back to the LocalityCommissioner pointing out that the information aboutthe review procedure arrived too late for him to pursue an appeal as his mother had already beentransferred to the nursing home by the time hereceived the leaflet. He also commented that prior toreceiving the Locality Commissioner's letter he hadbeen given no written information whatever withregard to his mother's care, its funding, or other related matters. Having read the Authority's policy hewas more convinced than ever that Mrs Z's careshould be fully funded by the Authority and heenclosed a detailed statement of his reasons. Inessence, Mr Z contended that at an assessment on 30 April 1998 the Consultant had been willing to admitMrs Z to hospital compulsorily under the MentalHealth Act; that Mrs Z's present condition was suchthat she needed one to one attention throughout theday; that as her physical and mental condition wouldnot improve she was terminally ill; and that she needed palliative care. He maintained that on each ofthose grounds the Authority's policy stipulated thatMrs Z's nursing home care should be 100% NHS funded.


implement those recommendations. This is particularlyso given that further guidance is expected to be issuedby the Department of Health in the near future….

'I also recommend that a "risk management" exerciseis undertaken. The Health Authority may wish to identify cases in which NHS funding has been refusedbecause a particular patient was not regarded asrequiring "specialist" nursing care. It would be prudent to identify all cases where patients areregarded as receiving "general" nursing services butthose services are of an "intensity, quantity, continuityand range" that might be considered beyond theresponsibility of a Local Authority. This exercise willidentify those cases for which the Health Authoritymight have future responsibility and cases for whichthere is potential "retrospective" financial responsibility.

'Apart from planned amendments to the document, theHealth Authority should consider the manner in whichthe eligibility criteria is applied at the present time.The Health Authority should ensure that its policy isapplied in accordance with the Court of Appeal judgment as distinct from the precise wording of thedocument. This is important….'

The further legal advice received by the Authority inFebruary 2000 included:

'The Opinion from Counsel also identifies a problemwith paragraph 2.19. As currently drafted paragraph2.19 states that the Health Authority will only beprepared to fund where no suitable hospital or otherin-patient facility exists. This is the point I mentionedin my earlier letter of advice. I do not think that thisrequirement cannot [sic] be sustained in the light ofthe Court of Appeal's Judgment in Coughlan.

'Counsel's opinion is that the requirement for activeregular supervision by a consultant - as a pre-condition for continuing in-patient care - cannot besustained. This is not a point that I covered in my previous letter of advice. However, I think thatCounsel's opinion is probably right….

'I remain of the view that specific risks to the HealthAuthority in the short term lie in the manner in whichthe eligibility criteria are applied as distinct from theprecise wording of the criteria.'

Findings (a)18. Mr X has been arguing since January 1998that the NHS should pay the full cost of his father'snursing home care. During the period since then hehas put forward various reasons why he believes thatto be so, mainly that the Authority's eligibility criteria

were over-restrictive. Before I consider the arguments about that I need first to resolve the question, which otherwise causes confusion in thiscase, of which HA (if any) might have been responsible for Mr X senior's care at what point.

19. In 1998 responsibility for NHS funding restedwith the HA where the patient was usually resident(paragraph 8). Mr X senior lived in Dorset and firstmoved to the nursing home in Hampshire only forrespite care. It was at that point that his son requested NHS funding for Mr X senior's long termcare: and since his permanent home at that point wasstill in Dorset, it was quite correct that he was thenassessed under the Authority's criteria with a view tothem funding his care. If he was, properly, not eligiblefor NHS funding by that Authority at that point then,once he became permanently resident at the home inHampshire, the HA there (not that in Dorset) becameresponsible for any NHS care he needed. Mr X couldhave asked for his father to be assessed under theHampshire criteria in 1998. On the other hand if Mr Xshould in fact have been judged eligible for funding bythe Authority for his long term care in January/February 1998, under the terms of the 1993 District ofResidence guidance (paragraph 8) then they wouldhave retained that responsibility (while he still mettheir eligibility criteria) even though the home was inthe area of Southampton and South West HampshireHealth Authority. The subsequent guidance on fundingof HAs, PCGs and PCTs suggests that that situationchanged in April 1999, when the Southampton andSouth West Hampshire Health Authority would havebecome the responsible body for any funding.

20. So the key issue in this case is whether Mr Xsenior should have been considered eligible for funding by the Authority from early 1998 to March1999. His son argues that he should have been. Hesays that the Authority's criteria were unnecessarilyrestrictive, and that his father was entitled to fundingfor his care because he needed the care as a result ofa disease. He has quoted from the judgment by theAppeal Court in the Coughlan case in support of hisview.

21. I found that the Authority was responsible, inFebruary 1998, for determining whether Mr X senior'scondition meant that he fulfilled the criteria for NHSfunding for his care. I shall deal first with theAuthority's criteria in relation to the national guidancein 1998 (i.e. before the Coughlan decision). Mr Xexplained his chief concerns about that to theAuthority's convener on 22 April 1998 (paragraph 14).He questioned first section 2.2 of the document setting out the Authority's policy on funding continuing

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The Authority's policy in respect of thefunding of continuing health care needs9. The Authority's policy was contained in abooklet entitled 'NHS Responsibility For MeetingContinuing Healthcare Needs in Berkshire'. It included the following statements of principle:

'Everyone who requires the primary and specialisthealth care services should be eligible to receivethose services funded by the NHS. They should be eligible to receive them wherever they live, whether itis at home, in a residential or nursing home, in a hospital or any other setting.'

and

'Anyone who requires continuing and regular medicaltreatment, nursing care or rehabilitation therapy at alevel of intensity or degree of specialisation whichcannot be sustained at home or in a residential ornursing home setting (even when access to the primary and specialist health care services is available), should be eligible for continuing NHS carein an appropriate setting.'

and

'Some patients discharged to a nursing home will needan intensive and complex personal care packagewhich is beyond the customary level of care offered bythe home. Such patients may also be eligible for NHSfunding of those aspects of health care which arebeyond the general nursing care routinely expected ina registered nursing home.'

10. The policy specified broad groups of peopleand the degree to which each group qualified for NHSfunding. Group 1 comprised 'people who would normally need to live in a hospital setting, a specialised nursing home or hospice because the specialised nature of continuing health care theyrequire could not be provided in any other setting.' Allpersons categorised as belonging to Group 1 qualifiedfor 100% NHS funding. Group 2 comprised 'peoplewho are discharged from hospital to a nursing homeor admitted to a nursing home from the community,whose needs are such that they require an intensiveand complex personal care package beyond the customary level of care offered by the home.' Peoplein Group 2 did not qualify for 100% funding, they qualified for NHS funding of the extra nursing carerequired over and above the general nursing careincluded in the standard nursing home price. In thecase of patients who were terminally ill and neededspecialist palliative care, responsibility for placementand funding rested entirely with the Authority. The

level of NHS funding was to be determined after a fullassessment of needs by health and social servicesstaff and agreement between the Authority and therelevant social services authority that the extra costcharged by the nursing home was justified.

11. The policy gave examples of the types ofneed that might qualify a person for inclusion in eachof the groups. (The Authority's policy for Group 1 andGroup 2 is in the appendix.) Under Group 2 theexamples given included people with multiple andcomplex nursing and medical problems; peopleneeding regular therapeutic support deemed essentialby a consultant and of a kind which could only bedelivered by a professionally qualified person; andpatients with dementia whose confusion andchallenging behaviour cannot be managed in thecommunity and who require care in a specialisednursing home.

Chronology of key events and evidence12. I now summarise the key correspondencebetween Mr Z, the Authority and others involved:

27 November 1997 - Mrs Z visited by a consultantin old age psychiatry (the Consultant). The diagnosiswas that Mrs Z might be suffering from moderatechronic organic brain syndrome.

1 December - The Consultant wrote to Mrs Z's GP concluding that he would consider '….admission tothe.… [the Hospital] informally or formally, should thesituation get into crisis. In the longer term she is likely to require long term residential care, in view ofthe progressive nature of her illness'.

30 April 1998 - An Approved Social Worker (ASW),a Care Manager, and the Consultant visited Mrs Z ather home following an incident when she was found wandering outside.

6 May - The Consultant wrote to the GP about thevisit to Mrs Z's home on 30 April. The Consultantdescribed his assessment of Mrs Z at that visit.Concluding his letter, the Consultant wrote:

'....The question of formal admission to [the] Hospitalon Section 3 [of the Mental Health Act 1983 - (the Act)]was considered, but on balance, it was agreed by usto waive formal admission presently, if [Mrs Z] can bepersuaded to accept more intensive domiciliary careand perhaps day care. It was left to [the] ASW.... and[a social services care manager] to negotiate sucharrangements with [Mrs Z] and her sister. I wouldconsider admission to [the Hospital], formally if needbe, if the situation reaches crisis point....'


health care. However that section did not attempt todefine fully the Authority's criteria, as section 2.3made clear but, it seems to me, was a summary. I donot therefore think it unreasonable that it does notcover all the points in the national guidance. I thinkMr X's concerns about sections 5.1 to 5.4 are morevalid. While I recognise that the Regional Officeapparently accepted that the criteria were not over-restrictive, it seems to me that the criteria, 5.3 in particular, do imply that only those patients requiringclinical management by a consultant will be eligible:whereas EL(96)8 emphasises that that should not bethe case. I am also uneasy at the way the criteriaappear to link eligibility to needing care in an NHS unit.One would expect any HA to have a number of peopleentitled to NHS continuing care, and some HAs mighthave enough provision in NHS facilities to meet allthose needs whereas others might not. So a reluctance to fund care outside the NHS does not necessarily indicate a failure to make sufficient provision: though if all the long term care was provided in large institutional hospital settings itwould raise questions about the quality of life offeredto such patients. However the crucial issue in thiscase is how the Authority's criteria were likely to beapplied in practice. Whereas the criteria do indicate(at 2.19) the possibility of exceptions being made,given the general wording that was likely to be missedby those trying to interpret the policy. Indeed thatseems to have happened in Mr X's case: the contractsmanager's early correspondence with Mr X seemed totake the line that, because Mr X senior could be caredfor in a nursing home rather than in an NHS facility,that necessarily meant he did not qualify for funding.So I do conclude that, in practice, the criteria wererather too restrictive in comparison to the relevantNHS guidance at the time. I am not at this stageexpressing any view as to whether that led to anypractical injustice to Mr X senior, i.e. whether or notthat meant he did not receive NHS-funded care towhich he was entitled. I shall return to that point.

22. Before that however I shall deal with Mr X'sother initial argument (not linked to the national guidance), that his father was necessarily entitled toNHS funding for his care because it was precipitatedby his illness. I am not aware of any legislation whichsays that whenever any type of care is neededbecause of an illness, that should be provided by theNHS. It is well established in law that the NHS doesnot have to provide even all health care which a person might need, and the guidance following theCoughlan judgment picked up that point saying thatthe NHS may have regard to its resources when deciding on resource provision. That guidance alsomade it clear that the judgment did not call into

question that local authorities may make provision fornursing care, as well as more general personal care.So I do not see that the fact that Mr X senior neededcare because of a disease meant that all that carenecessarily had to be provided by the NHS.

23. That brings me to Mr X's final argument thathis father's fundamental entitlement to NHS fundingfor his care was established by the Coughlan judgment. He quotes the part of the judgment whichsays that it is generally unlawful for authorities totransfer responsibility for nursing care to local authorities unless the care is incidental or ancillary tothe local authority services. He says that the nursingservices his father received (in 2000) were very similar to Miss Coughlan's. While Mr X does notappear to have had a direct response from theAuthority on this point, despite his letter of 7 January2000, they told me that they had received legal advicethat their criteria were 'in accord with the spirit' of theCoughlan judgment and that since November 1999they had applied the eligibility criteria in accordancewith the judgment rather than the precise wording ofthe policy document.

24. I have to say that I find that unconvincing. Ihave explained earlier why I concluded that, in practice, Dorset's criteria were rather more restrictive than envisaged by HSG(95)8. But in the lightof the Coughlan judgment, and the subsequentguidance, they were far too restrictive. Many patientswho required significant amounts of nursing care,which could not be regarded as merely incidental orancillary to the provision of accommodation by a localauthority, would not satisfy the Dorset criteria. Thefact that since November 1999 they felt the need toapply the criteria in a different way, and not in accordwith the precise wording of their policy document,suggests that they were aware of a discrepancy. Thelegal advice which they received (paragraph 17) identified various concerns with the policy but did notrecommend immediate changes to it, partly becausefurther guidance was expected from the Departmentof Health. I can see that that expectation might haveinfluenced HAs to take less immediate action thanthey might otherwise have done. However I cannotsee how the Authority could expect the criteria to beapplied in a way consistent with the judgment withoutchanging them and/or guidance accompanying them:especially when clinical assessments under the criteria might be done by various different staff, oftenthose employed by local NHS trusts rather than theAuthority itself. Nor can I see that that approach provides adequate transparency for the public aboutthe eligibility criteria.

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'The review procedure is intended as an additionalsafeguard for patients assessed as ready for discharge from NHS in-patient care who require ongoing continuing support from health and/or socialservices and who consider that the Authority's criteriafor NHS continuing in-patient care (whether in a hospital or in some other setting such as a nursinghome) have not been correctly applied in their case.

'The review procedure applies to all patients who havebeen receiving NHS in-patient care, whether in a hospital, or arranged and funded by the NHS in a hospice, nursing home or elsewhere, and to all clientgroups covered in local eligibility criteria.'

6. In August 1999 the Department of Healthissued further guidance on continuing health care in acircular HSC 1999/180. This was in response to aCourt of Appeal judgment in the case R v. North andEast Devon Health Authority ex parte Coughlan (theCoughlan judgment). That judgment summarised itsconclusions as follows:

'(a) The NHS does not have sole responsibility fornursing care. Nursing care for a chronically sick person may in appropriate cases be provided by alocal authority as a social service and the patient maybe liable to meet the cost of that care according to thepatient's needs…. Whether it was unlawful [to transfer responsibility for the patient's general nursing care to the local authority] depends, generally,on whether the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a dutyto provide and (ii) of a nature which it can be expectedthat an authority whose primary responsibility is toprovide social services can be expected to provide.Miss Coughlan needed services of a wholly differentcategory.'

The Department's guidance included in its descriptionof the judgment:


'(c) HSG (95)8 is lawful, although could be clearer.


(i) merely incidental to the provision of theaccommodation which a local authority is undera duty to provide to persons to whom section21 refers; and

(ii) of a nature which it can be expected than anauthority whose primary responsibility is toprovide social services can be expected to provide.



Authorities were advised to satisfy themselves thattheir continuing and community care policies and eligibility criteria were in line with the judgment andexisting guidance, taking further legal advice wherenecessary. Where they revised their criteria theyshould consider what action they needed to take to re-assess service users against the revised criteria.

7. On 7 September 1999 a Regional Office of theNHS Executive (the Regional Office) sent to all healthauthorities in their region (including Berkshire HealthAuthority) a letter about the Coughlan judgment. Itincluded:

'The judgment.… does not comment on all aspects ofcontinuing care policy - just those elements whichimpact on nursing care in nursing homes. There is noneed to reconsider other aspects of local policies.There is a review of policy and guidance on continuingcare which is due to report towards the end of thisyear, so it would be premature for [Authorities] tocarry out a major review of local policy at this point.Health Authorities may wish to bear this in mind whenconsidering their approach.'

Authorities were asked to report to the RegionalOffice on what action they had taken in response toHSC 1999/180.

8. No further national guidance on continuingcare eligibility criteria was issued until June 2001 (i.e. after Mrs Z had died).


25. I note the legal adviser's suggestion that theAuthority should conduct a 'risk management' exerciseto identify cases where, in the light of aspects of theCoughlan judgment, the Authority might have a 'retrospective financial responsibility'. I have not seenany evidence to suggest that the eligibility of patients(and Mr X senior in particular) was properly reviewedfollowing the judgment. Although, by the time of thejudgment, events had moved on since it seems thatresponsibility for any appropriate funding for his carehad passed to Southampton and South WestHampshire in April 1999, the Authority should havechecked that the initial judgment about his eligibility(back in 1998) was reasonable in the light of the judgment and subsequent guidance. I uphold the complaint.

26. I turn now to the question of remedial action.In 2001 the Authority finally did review its policy andeligibility criteria and adopted a new version inDecember of that year. The organisation of the NHShas also changed since these events. The Authority nolonger exists. Responsibility for setting eligibility criteria now lies with a new Dorset and SomersetHealth Authority (the new Authority), and the relevantbudget for funding such care will be held by a PCT.While I recognise that the new Authority played nopart in these events, I must regard them as responsible for taking remedial action. I recommendthat the new Authority should, with its associated PCTand local authority colleagues, review the eligibilitycriteria for funding continuing care that have been inoperation since April 1996 to ensure that they were(and are) in line with the Coughlan judgment and otherrelevant guidance. I further recommend that thenew Authority should, with colleague organisations,then determine whether there were any patients(including Mr X senior) who were wrongly refusedfunding for continuing care, and make the necessaryarrangements for reimbursing the costs they incurredunnecessarily. While Mr X has compared his father'sneeds in 2000 with those of Miss Coughlan, as I haveexplained earlier, it seems that the Authority were notresponsible for providing his father's health care bythen. Furthermore Mr X senior suffered adegenerative condition, so he was more likely to beeligible for funding as time went by. The appropriateway forward seemed to me to be for his eligibility in1998-9 to be reconsidered in the light of availableinformation about his condition then, once appropriatecriteria for that period had been developed.

Complaint (b) The Trust failed properlyto assess Mr X senior's eligibility forNHS-funded continuing in-patient care

27. In correspondence to the Trust in October 1998Mr X referred to his complaints about them being asfollows:

'.…I have not been provided with a copy of [myfather's] original health care assessment. I havereceived a copy of a letter (12.3.98) from [my father'sconsultant], addressed to [the Authority's contractsmanager], simply stating that [my father] "does notmeet the criteria for continuing care"….

'Neither the precise way in which my father fails to"meet the criteria" nor the tests (if any) which werecarried out in order to arrive at this conclusion arespecified in this letter. I can thus only conclude that myfather "fails to meet the criteria" simply because [theconsultant] says so. Clearly this is unacceptable andopen to challenge.

'In the absence of a detailed clinical report a definitivecorrelation between the Health Authority's publishedcriteria and my father's condition cannot be made….'

Trust's comments28. A letter dated 28 November 2000 from theTrust's chief executive to the Ombudsman included:

'[Mr X] initially contacted [the Authority's chief executive] in early 1998 and [the Authority's chiefexecutive] subsequently passed [Mr X's] complaint tome in October 1998 to respond to the issues regarding the health assessment of his father.

'I replied to [Mr X] in November 1998 advising that following the assessment of his father the clinicalopinion was that he did not meet the criteria set by[the Authority]. In March 1999 [Mr X] kindly sent me acopy of a letter he had sent to [the Authority] and Iacknowledged this the day after receipt….

'[HSC(99)180] was brought to the attention of allConsultants and General Managers within the Trust.However the Trust complies with implementing thecriteria set by [the Authority] for continuing care eligibility and I understand that [the Authority] soughtlegal advice about this. I believe they were advisedthere was no need to change the criteria they hadset….

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Annex DCase No. E.814/00-01

Refusal to provide continuing care funding Complaint against:

The former Berkshire Health Authority(the Authority)

Complaint as put by Mr Z1. The account of the complaint provided by Mr Z was that on 23 May 1998 his 90 year old mother,Mrs Z, was admitted to a hospital in Wallingford (theHospital), suffering with vascular dementia. On 17 August Mr Z wrote to the Authority saying thatshould his mother be discharged to a residential homethe Authority should fund her continuing care. On 24 August Mrs Z was discharged to a nursing home(the nursing home). On 28 August the Authority'sLocality Commissioner wrote to Mr Z saying that theAuthority was not responsible for the full costs of hismother's continuing care needs. She told Mr Z that ifhe remained dissatisfied it was open to him to pursuehis concerns through a 'Review Process', details ofwhich were enclosed with her letter. On 10 SeptemberMr Z wrote to the Authority stating that his mother'scare should be funded totally by the NHS. InNovember Mrs Z was admitted to another hospital(the second Hospital) where she underwent hipsurgery. Following a further exchange of correspondence the Authority wrote to Mr Z, on 18 November, saying that his mother did not satisfythe Authority's criteria for 100% funding. On 16 January 2000 Mr Z wrote to the Authority requesting an independent review (IR) of his complaints. On 22 June the Authority's convenerwrote to Mr Z refusing that request. Mrs Z died on 26 November 2000.


(i) The Authority acted unreasonably in refusing tofund Mrs Z's continuing care; and

(ii) The Authority failed to arrange for Mrs Z's needsto be re-assessed following her second hospitaladmission, in November 1998.

Investigation3. The statement of complaint for the investigation was issued on 7 December 2000. The

Authority's comments were obtained and relevantdocuments were examined. The Ombudsman'sInvestigating Officer took evidence from Mr Z and anumber of the Authority staff. He also made enquiriesof the Department of Health and consulted with theOffice of the Local Government Ombudsman (LGO),about a related complaint against a Borough Council(the Borough Council) made by Mr Z which that officeinvestigated. I have also noted documents relating toa separate complaint by Mr Z against another trust.Professional advice was provided by theOmbudsman's Advisers on psychiatry and mentalhealth, whose views are given in paragraphs 29 to 31of this report. The Authority's policy for ContinuingCare Group 1 (that provided with 100% NHS funding)and Group 2 is at the appendix.

Relevant Legislation and Code ofConductNational Guidance4. In 1995 the Department of Health issuedguidance HSG (95)8 on NHS responsibilities for meeting continuing health care needs. The guidancedetailed a national framework of conditions for allhealth authorities to meet, by April 1996, in drawingup local policies and eligibility criteria for continuinghealth care and in deciding the appropriate balance ofservices to meet local needs. The guidance stipulatedthat the NHS had responsibility for arranging andfunding continuing in-patient care, on a short or longterm basis, for people:

'….where the complexity or intensity of their medical,nursing care or other care or the need for frequent noteasily predictable interventions requires the regular(in the majority of cases this might be weekly or morefrequent) supervision of a consultant, specialist nurseor other NHS member of the multidisciplinary team….

'….who require routinely the use of specialist healthcare equipment or treatments which require thesupervision of specialist NHS staff….

'who have a rapidly degenerating or unstable condition which means that they will require specialistmedical or nursing supervision.'

The in-patient care might be in a hospital or in a nursing home.

5. In 1995 the Department of Health also issuedguidance HSG (95)39 to health authorities, NHS trustsand other bodies. The circular included guidance onarrangements for reviewing decisions on eligibility forNHS continuing in-patient care. Relevant extracts fromthat guidance are set out below:


'In response to the issue under investigation by youroffice…. 'the Trust failed to properly assess [Mr Xsenior's] eligibility for NHS-funded in-patient care' Iwould like to make the following points.

'In my letter to [Mr X] dated 20 November 1998…. Ihave given the background for the assessment andthe reasons why Trust staff felt [Mr X senior] did notmeet [the Authority's] eligibility criteria for continuingcare. I also offered the opportunity for [Mr X] toaccess his father's notes if he wished to see the original health care assessment.

'….These criteria are included in the "Policy and eligibility criteria for the provision of continuing healthcare" produced by [the Authority] in April 1997….

'[The consultant] and his team, who carried out thereview, were of the opinion that [Mr X senior] did notmeet [the] criteria for in-patient continuing care andas [Mr X senior's] needs were being met by the….Nursing Home he was discharged on 1 July 1998 fromthe Trust's elderly mental health service.

'Having had the opportunity of reviewing the complaintagain; and following further discussion with [the consultant] and [the Trust's manager for elderly mental health], I cannot disagree with [the consultant's] clinical opinion and the decision taken atthe time appears appropriate, given [the Authority's]eligibility criteria.'

Documentary evidence29. The Authority's contracts manager wrote toa senior manager at the Trust on 26 January 1998.That letter included:

'[Mr X] telephoned me on 22 January to discuss thesituation and I explained to him that continuing care ina nursing home was the financial responsibility of theLocal Authority. If a patient was considered sufficiently unwell to meet our criteria for continuingcare then we would expect that an admission would bemade to a local hospital.

'We also discussed the assessment which had beencarried out by [the consultant] and I explained that[the consultant] did not consider that an admission tohospital was appropriate, thereby confirming that [Mr X senior] was a Local Authority responsibility….

'I would be grateful if you could let me know when [Mr X senior] was last assessed and whether or notyou feel that a reassessment could reasonably berequested by his son.'

30. The Trust were asked to provide theOmbudsman with relevant documentation from Mr Xsenior's medical records relating to assessments carried out by Trust staff in relation to the Authority'seligibility criteria. The papers they provided did notinclude any detailed assessment against each of theAuthority's criteria. Most detail about the assessmentwas provided in a letter from Mr X senior's consultantto his GP on 12 February 1998. That said:

'I reviewed [Mr X senior] today with [a community psychiatric nurse] CPN.… We had the opportunity ofmeeting two trained nurses who knew [Mr X senior]well….

'After an initial period when [Mr X senior] was similarto his presentation [at the Trust's own unit] namelyagitated, pre-occupied with one of his former jobs (ina slaughter house), restless and sleeping poorly, therehas been a change after three weeks. He appeared tobe more confused and disoriented but there was animprovement in his behaviour. He is now much moretolerant of other people, more accepting of personalcare so much that the female staff can manage him.He no longer wanders, he is not irritable and there ismuch less pre-occupation with slaughtering animals. He can be quite friendly withother residents. He needs a good deal of assistancewith his personal care. He has not tried to abscond.

'[Mr X senior] himself responded in a friendly mannerto our interview. I don't think he really rememberedme but was able to say that he liked staying where heappeared to be disoriented [sic]. He thought the staffwere good. There was a marked change in hisdemeanour from when I remember him before. Hewas quite happy to sit in the chair and there was nosign of the agitation previously. He talked of killing justonce.

'He is tolerating the medication without any problemsand does not appear sedated.

'Whilst the cognitive aspects of his dementia may havedeteriorated lightly there have been marked changesin other respects for the better. He does not meet theHealth Authority's continuing care criteria and indeedhas settled very well in [the] Nursing home. The staffare happy he stays….'

31. The consultant wrote to the Authority on 12 March 1998:

'I am writing to update you on the situation regarding[Mr X senior]. I formally reviewed him on 10thFebruary 1998 with the CPN…. who has been

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34 February 2003 • NHS Funding for Long Term Care • Annex C Case No. E.420/00-01

Appendix to E.420/00-01

Mrs N - Assessment ofCare Needs

MobilityPrior to admission, Mrs N was previously mobilein the house. She had poor sitting balance andwas nursed mainly in bed, however she was ableto sit in the chair for about three hours each day supported by pillows at her side. A goluo-liftinghoist was used to transfer her from bed to chair,as she was unable to weight bear.

ContinenceMrs N was incontinent of urine and had a urethracatheter in place. She was unable to make herneeds known and required assistance with herbowels every three to four days.

SkinA small grade 2-3 break was noted on Mrs N'sleft buttock and she required her position to bechanged every two or three hours.

Personal hygieneMrs N required assistance with all care. Althoughshe could move her hand and left arm, she wasunable to participate in washing. Mrs N neededhelp with oral care as she was taking nil bymouth.

CommunicationMrs N was unable to speak at all and would smilein response to someone smiling at her. She haddifficulties with her hearing and required the useof a hearing aid in her right ear.

Dietary needsMrs N was unable to swallow and required a PEGfeeding regime. It was noted that she tolerated the feeding regime well and that thePEG site presented no problems during her stay.

Social interactionGenerally, Mrs N was very pleasant and oftensmiling. She was unable to communicate verbally and did not appear to have any insight orrecognise people around her.


providing regular follow-up. He does not meet the criteria for continuing care and appears well settled inthe nursing home. He himself wishes to remain thereand the staff reported that they were quite happy heshould do so.'

Findings (b)32. Mr X complained that the Trust failed properly to assess Mr X senior's eligibility for continuing in-patient care. He complains that the Trusthad been unable to provide him with any detailed clinical assessment showing why his father did notmeet the criteria. Following correspondence from theAuthority to the Trust, Mr X senior's consultant psychiatrist visited him in February 1998 andassessed him. The most detailed record of thatassessment seems to be in his letter to Mr X senior'sGP. Like Mr X, I would really have expected to see arecord of a more formal assessment against each ofthe criteria. However, I do not think it is appropriateto criticise the Trust because that was lacking in thiscase. The Authority's contracts manager's letter to theTrust (paragraph 29) would reasonably lead them tobelieve that the crucial factor in deciding on eligibilityfor NHS-funded care was whether or not Mr X seniorrequired hospital admission. The consultant felt thathe did not (and I have seen no evidence which wouldcause me to question that). I can understand therefore why the consultant did not go on to record amore detailed assessment in terms of the Authority'spublished criteria. I recommend that in future assessments of eligibility for NHS continuing care bythe Trust should include recording why the patient isconsidered to meet, or not to meet, each of the criteria. However, I do not see that the Trust deservecriticism in this case. I do not uphold the complaintagainst them.

Conclusions33. I have set out my findings in paragraphs 18-26 and 32. The Trust has agreed to implement my recommendation in paragraph 32. The new Authorityhas agreed to implement my recommendations inparagraph 26. They say they are prepared to consider reimbursement to Mr X on receipt of the necessary details of expenditure incurred. They haveasked me to convey through my report - as I do - theirapologies to Mr X for the shortcomings I have identified.

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Annex C Case No. E.420/00-01 • NHS Funding for Long Term Care • February 2003 33

(b) The Trust failed to assess properlyMrs N's eligibility for NHS-funded continuing in-patient care34. I do not hold the Trust responsible for theactions of the Health Authority in determining the criteria. Although they would have been sent the guidance following the Coughlan case for information,and might helpfully have questioned what action theHealth Authority had taken in response, I hold theTrust responsible only for their assessment againstthe criteria they were given. In her letter to the Trustof 2 June 2000 (paragraph 16), the Assistant Directorcriticised the Trust's documentation and conduct of themulti-disciplinary review. It is clear that theassessment provided by the second Consultant (paragraph 16, 27 July) was much more detailed. TheTrust's Chief Executive (paragraph 20) and theChairman (paragraph 25) were under the impressionthat the assessment checklist indicated who hadattended a multi-disciplinary review meeting. TheConsultant Physician (paragraph 21) has said that thatwas not the case. Even if the relevant disciplines hadall been involved in the assessment, that does notmean that all Mrs N's needs were assessed. Forexample, there was a misunderstanding at the timebetween the Trust and the Health Authority about thesignificance of PEG feeding. The Assistant Director(paragraph 27) said that each case should be dealtwith on its merits, and the decision based on the levelof dependency of the individual patient. She wrote toTrusts in February 2001 emphasising the need for aholistic view to be taken on each individual case,although that was too late in Mrs N's case.

35. My professional advisers have advised thatthe Trust staff carried out an appropriate assessmentof Mrs N's needs, based on the policy and guidelinesprovided to them at that time by the HealthAuthority. I accept that advice. I recommend thatthe Trust should remind staff responsible for carryingout such assessments to record the basis of theirdecisions clearly in the medical records; and to clarifywho is party to the decision whether a patient iseligible for funding. (The Trust subsequently advisedme that they were currently piloting a scheme forproducing collaborative documentation, which willprovide details of each patient episode, includingdiagnosis, treatment, medications and continuing care assessments.) I uphold this complaint only to theextent that Trust staff should have sought appropriateadvice if they were unsure about how to interpret theguidance provided by the Health Authority.

Conclusions36. I have set out my findings in paragraphs 29-35. I have concluded that the Health Authority wrongly failed to provide care for Mrs N. I turn nowto the question of remedial action. The organisation ofthe NHS has changed since these events. Wigan andBolton Health Authority no longer exists.Responsibility for setting eligibility criteria now lieswith a new Greater Manchester Health Authority (thenew Authority), though the relevant budget for fundingsuch care will be held by the Bolton PCT. While Irecognise that the new Authority played no part inthese events, I must regard them as responsible fortaking remedial action. I recommend that the newAuthority, in consultation with Bolton PCT, shouldensure that Mrs N's estate is left no worse off than itwould have been had the NHS-funded her nursinghome care. The new Authority and the Trust haveagreed to implement this recommendation and haveasked me to convey to Father N - as I do through myreport - their apologies for the shortcomings I haveidentified. They will contact Father N directly to lethim know what is being done to put matters right.

37. I also recommend that the new Authorityshould, with its associated PCT and local authority colleagues, review the eligibility criteria for fundingcontinuing care that have been in operation since April1996 to ensure that they were (and are) in line withthe Coughlan judgment and other relevant guidance.The new Authority has agreed to implement this recommendation and I welcome action taken in recentweeks on this matter.

38. I further recommend that the new Authorityshould, with its associated PCT and local authoritycolleagues, determine whether there were any otherpatients who were wrongly refused funding forcontinuing care, identify them and make the necessaryarrangements for reimbursing the costs they incurred.The new Authority has agreed, in principle, toimplement this recommendation. I welcome actiontaken in recent weeks to establish the feasibility of sodoing. I have asked the Health Authority to reportback to me by 1 October on this matter.

39. I recognise that the conclusions I reached inthis case may have the same implications for manyother health authorities and trusts as they do for thenew Authority and these PCTs. I have, therefore, written to the NHS Chief Executive and PermanentSecretary inviting him to draw this case and my recommendations to the attention of NHS organisations; and to determine how best they mightbe supported in undertaking this important and urgentwork.


Annex CCase No. E.420/00-01

Inappropriate application of policy forthe funding of continuing care andfailure to properlyassess a woman's eligibility for NHS-funded continuing in-patient careComplaint against:

The former Wigan and Bolton HealthAuthority (the Health Authority) andBolton Hospitals NHS Trust (the Trust)

Complaint as put by Father N:1. The account of the complaint provided byFather N was that his mother, Mrs N, had sufferedseveral strokes, as a result of which she had nospeech or comprehension and was unable to swallow,requiring feeding by PEG tube (a tube which allowsfeeding directly into the stomach). Mrs N was beingtreated as an in-patient in the Trust's stroke unit andwas discharged to a nursing home in Kent on 24 May2000, so as to be near her son. She was assessed byTrust staff before her discharge as being ineligible forfunding of continuing in-patient care. Father N raisedconcerns with Trust staff about their assessment butwas not advised how to make a formal complaintabout that. Mrs N's nursing home care in Kent was privately funded. Father N considered that the HealthAuthority's decision not to fund his mother's continuing care was inequitable, as an assessment bythe health authority in whose area she was then living(the second health authority) said that, if they wereresponsible for her care, she would have been eligiblefor continuing care funding. Father N complained tothe Health Authority, who remained responsible forMrs N's care, on 23 May 2000, and requested a reviewof his mother's assessment, which was refused on 2 June. He requested a further review on 31 July, andwas again refused on 28 August. Father N remaineddissatisfied. (Sadly, Mrs N died on 1 September 2001,during the course of the investigation of the complaint).


(a) The Health Authority's policy for the funding of continuing care was not applied appropriately in Mrs N's case; and

(b) The Trust failed to assess properly Mrs N's eligibility for NHS-funded continuing in-patientcare.

Investigation3. The statement of complaint for the investigation was issued on 26 April 2001. Commentswere obtained from the Health Authority and the Trust;and relevant documents, including clinical records,were examined. My investigating officer took evidencefrom Father N, and from Trust and Health Authoritystaff. Evidence was also obtained from the secondhealth authority. Two of my professional advisers, a hospital consultant and a senior nurse,provided advice on the clinical issues. Their advice isincorporated into this report at paragraph 28. I havenot included in this report every detail investigated,but I am satisfied that no matter of significance hasbeen overlooked.

Background4. The statutory framework for the provision ofhealth services is outlined in paragraph 5; paragraphs6-10 summarise relevant national guidance; and relevant health authority policies and criteria are summarised in paragraphs 11-12. Over the yearsHealth Service Ombudsmen have considered a number of complaints about continuing care. InJanuary 1994 the then Ombudsman made a specialreport (HC 197) on a complaint about the failure byLeeds Health Authority to provide long-term NHS carefor a brain-damaged patient. Leeds Health Authority'spolicy was to make no provision for continuing in-patient care at NHS expense either in hospital or inprivate nursing homes. My predecessor found thatthat was unreasonable and constituted a failure in theservice provided by the health authority.

Statutory framework5. The provision of health services in Englandand Wales is governed by the National Health ServiceAct 1977, which states in section 3(1) that it is theSecretary of State's duty to provide services 'to suchextent as he considers necessary to meet all reasonable requirements….', including 'such facilitiesfor.... the after-care of persons who have sufferedfrom illness as he considers are appropriate as part ofthe health service;....'. The National Health Service andCommunity Care Act 1990 (the 1990 Act), the relevantparts of which were implemented in April

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Professional advisers' opinion28. The Ombudsman's professional advisers (thefirst and second assessor) reviewed Mrs N's medicalrecords and were satisfied that Trust staff had carriedout an appropriate assessment of Mrs N's needsaccording to the policy and guidelines provided tothem at that time by the Health Authority. Although itappeared that not all the multi-disciplinary team hadbeen present when the Consultant Physician had completed the tick box assessment form for Mrs N,the advisers said that this was normal practice in manyhospitals. In the advisers' view, patients with a PEGtube require routinely the use of specialist health care equipment and monitoring by a trained nurse.

Findings(a) The Health Authority's policy for thefunding of continuing care was notapplied appropriately29. Father N saw the fact that the Health Authoritywould not fund his mother's care, when the secondhealth authority said they would have done, as evidence of injustice. I can understand why he tookthat view. However, NHS policy does allow for different eligibility criteria in different parts of thecountry; and the law does not allow me to question themerits of a discretionary decision properly taken. Itwas for the Health Authority to decide, within the lawand national guidelines, what level of services theyprovided for the residents in their area, although theyhad to be prepared to justify the balance and level ofthe services they proposed to arrange and fund. Sothe fact that different judgments were made aboutMrs N's eligibility by two different health authoritiesdoes not necessarily mean that either was acting maladministratively or failing to provide a servicewhich it was its function to provide.

30. The Health Authority's criteria reflected thenational criteria in most respects. However, theemphasis in the Health Authority's criteria was on theneed for care to be provided under the direction of aconsultant and normally in a hospital setting. It isapparent from the Consultant Physician's evidencethat in practice the need for consultant input was usedas the sole criterion when he was involved in assessing patients. That is not surprising, given thewording of the Health Authority's policy and the lack ofdetailed guidance on its interpretation. However, it isdisappointing that more account had not been taken ofthe reminder on this point in EL(96)8 (paragraph 9).

31. Of even more concern is the lack of any evidence that, in developing and applying their policy,the Health Authority had adequately taken intoaccount the implications of the Coughlan judgment

and the new national guidance in 1999 which followedit. They had had ample opportunity to do so beforeMrs N was assessed in 2000, but do not seem to havetaken any positive action in that direction untilFebruary 2001, when the Assistant Director wrote totrusts on the subject. Even then, the Health Authoritydo not seem to have reviewed the policy thoroughly orto have reconsidered Mrs N's case in the light of thejudgment. I criticise them for that. (Note: Furtherguidance on continuing care was issued in 2001 andguidance on the single assessment process wasissued in 2002 (paragraph 13). NHS bodies should befollowing that guidance.)

32. The NHS guidance on dealing with applications for review of decisions about continuingcare gives health authorities the right not to convenea panel, if the patient falls well outside the eligibility criteria. It also provides a checklist of issues to be considered before referring a case to a panel. It isnot the role of review panel members to consider the eligibility criteria themselves, only their application. Inthis case, the Chairman (paragraph 25) did not makeany notes of his first review of Father N's request fora panel. That was remiss of him. The second time hereviewed the case he voiced his opinion that Mrs N fellwell outside the eligibility criteria. I find that conclusion surprising in the light of the informationabout Mrs N's disability that was documented in hermedical records, and as he was by then aware ofFather N's concern that the second health authorityhad a different view. It would have been wiser in allthe circumstances to put the matter before a reviewpanel, where independent clinical advice could beobtained.

33. It is clear from the information I have seenabout Mrs N's condition that she was extremelydependent and required a high level of physical care:like Miss Coughlan, she was almost completely immobile; and she was doubly incontinent. I have seenno evidence that she had breathing difficulties as Miss Coughlan had; but she required PEG feeding,which Miss Coughlan did not. She was unable to communicate verbally. I cannot see that any authoritycould reasonably conclude that her need for nursingcare was merely incidental or ancillary to the provision of accommodation or of a nature one couldexpect Social Services to provide (paragraph 15). Itseems clear to me that she, like Miss Coughlan, needed services of a wholly different kind. If theHealth Authority had had a reasonable policy, andapplied it appropriately, they would have provided NHScare for Mrs N. They failed to provide a service whichit was their function to provide. I uphold the complaint.


1993, significantly increased the responsibilities oflocal authorities so as to include provision of accommodation for people who need it by reason ofillness. Section 47 of the 1990 Act requires localauthorities to carry out an assessment of a patient'sneeds before deciding whether or to what extent theywere required to provide services to meet thoseneeds.

National guidance6. In 1995 the Department of Health issuedguidance HSG(95)8 on NHS responsibilities for meeting continuing health care needs. The guidancedetailed a national framework of conditions for allhealth authorities to meet, by April 1996, in drawingup local policies and eligibility criteria for continuinghealth care and in deciding the appropriate balance ofservices to meet local needs. The guidance says that'health authorities…. will need to set priorities forcontinuing health care within the total resources available to them. While the balance, type and preciselevel of services may vary between different parts ofthe country in the light of local circumstances andneeds, there are a number of key conditions which allhealth authorities…. must be able to cover in theirlocal arrangements. These are set out in Annex A….'.Annex A includes the following passages:

'E Continuing in-patient careAll health authorities…. should arrange and fund anadequate level of service to meet the needs of peoplewho because of the nature, complexity or intensity oftheir health care needs will require continuing in-patient care arranged and funded by the NHS in hospital or in a nursing home…. The NHS is responsible for arranging and funding continuing in-patient care, on a short or long term basis, for people:

• where the complexity or intensity of theirmedical, nursing care or other clinical care orthe need for frequent not easily predictableinterventions requires the regular (in themajority of cases this might be weekly or morefrequent) supervision of a consultant, specialistnurse or other NHS member of the multidisciplinary team;

• who require routinely the use of specialisthealth care equipment or treatments whichrequire the supervision of specialist NHS staff;

• have a rapidly degenerating or unstable condition which means that they will requirespecialist medical or nursing supervision....'

'G Access to specialist or intensive medicaland nursing support for people placed innursing homes, residential homes or in thecommunitySome people who will be appropriately placed bysocial services in nursing homes, as their permanenthome, may still require some regular access to specialist medical, nursing or other community healthservices. This will also apply to people who havearranged and are funding their own care. This mayinclude occasional continuing specialist medicaladvice or treatment, specialist palliative care, specialist nursing care…. It should also include specialist medical or nursing equipment (for instancespecialist feeding equipment) not available on prescription and normally only available through hospitals….'

7. Also in 1995, detailed guidance was issuedon how health authorities and trusts should deal withapplications for review of decisions about continuingcare - HSG(95)39 'Arrangements for ReviewingDecisions on Eligibility for NHS Continuing In-patientCare'. The scope of the procedure was described asbeing to check that proper procedures had beenfollowed, and to ensure that the health authority'seligibility criteria had been properly and consistentlyfollowed. It included, as an appendix, a checklist ofissues to be considered before referring a case to apanel. It also included:

'4. The review procedure is intended as an additionalsafeguard for patients assessed as ready for discharge from NHS in-patient care who require ongoing continuing support from health and/or socialservices, and who consider that the health authority'seligibility criteria for NHS continuing in-patient care(whether in a hospital or in some other setting such asa nursing home) have not been correctly applied intheir case….

'19. The health authority does have the right to decidein any individual case not to convene a panel. It isexpected that such decisions will be confined to thosecases where the patient falls well outside the eligibility criteria, or where the case is very clearly notappropriate for the panel to consider…. Before taking a decision the authority should seek the adviceof the chairman of the panel. In all cases where adecision not to convene a panel is made, the healthauthority should give the patient, his or her family orcarer a full written explanation of the basis of its decision, together with a reminder of their rightsunder the NHS complaints procedure.'

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that. He had sympathy for Father N's concerns, andwas concerned about how many other Wigan andBolton patients might also be disadvantaged in a similar fashion. He was unable to recall when or whyPEG feeding had been excluded as criteria for NHScontinued care funding in Wigan and Bolton. He saidthere was no detailed guidance available on how tointerpret 'specialist nursing needs', or 'specialistequipment'. Therefore, clinicians tended to make adecision on the basis of whether or not regular consultant input was required by a patient. He hadasked the Trust authorities to review the application ofthe eligibility criteria, but was not aware that anything was being done about that.

23. The Director said she was not aware of theConsultant Physician writing to her or to any otherhospital manager about his concerns about interpretation of the continuing care eligibility criteria.In any case, such matters were not for the Trust todecide but would require negotiation with the HealthAuthority. In respect of the use of PEG feeding tubesthe Director said her recollection was that the use ofsuch devices fell outside the eligibility criteria, basedon a precedent set in another case some years priorto Mrs N's case. She could not recall the details of thatbut there had been consultation with the HealthAuthority and it would have been the AssistantDirector who provided advice on that. The Directorsaid that the Trust had a responsibility to ensure theyapplied the criteria consistently within the Trust; butthat the Health Authority was responsible for ensuringconsistency of application across all trusts in theirarea.

Health Authority evidence24. At the start of the investigation the ChiefExecutive provided a written response to the complaint which included:

'On commenting on the statement of complaint,although this is a complex matter, I consider that theAuthority's policy for the funding of NHS continuingcare was not applied inappropriately. A multi-disciplinary team assessment was made in [Mrs N's]case and the decision reached was that she did notrequire NHS continuing care. A placement in a nursing home was felt most appropriate. I should alsolike to clarify that the Health Authority's eligibility criteria relates to the need for a service and not theamount of funding. This means that the Trust wouldassess the need for NHS continuing care and not thefunding of a nursing home place.'

25. The Chairman told the investigator that hehad no record of his first review of Mrs N's case, but

would have reviewed the case against the NHS guidance, including the checklist, and the HealthAuthority criteria for continuing care. He had seenMrs N's medical records and reviewed those in detail.He was aware she had a PEG feeding tube. He was notmedically qualified, but could interpret the notes sufficiently well to make an assessment. He did notnormally seek clinical advice when deciding whetherto convene a panel and did not consider it necessaryto do so in this case. Such advice would be providedif a panel was set up. He had decided that the procedures had been followed appropriately. The formcompleted by the Trust showed that a multi-agencymeeting had been held and who had attended that. Italso confirmed that the staff were unanimous indeciding that Mrs N did not meet the criteria for NHScontinuing care; and he had to accept their professional opinion on that. On that basis, he decided that Mrs N fell well outside the eligibility criteria, and was not a marginal case and, therefore,a continuing care review panel was not required.

26. When he was asked to review the case againin August 2000, the Chairman was aware that FatherN had been told that his mother would qualify for funding in Kent, although he did not recall having seenwritten evidence of that. The notes he made at thetime showed that he wondered whether it might berelevant to compare the Health Authority's criteriawith those of the second health authority. He decidedthat was not appropriate, as he was merely requiredto check that the procedures had been properlyapplied, and that an assessment had been correctlycarried out against the Health Authority criteria. TheChairman had since reviewed the papers again, andstill felt that his initial decision had been appropriateand that Mrs N's case had been dealt with appropriately.

27. The Assistant Director said that she wasthe Health Authority's nominated officer responsiblefor continuing care. There had been no policy decisionon whether the use of PEG tubes should make apatient eligible for continuing care. Each case wasdealt with on its merits, and the decision should bebased on the level of dependency of the individualpatient. For example, some patients, especially thosewith dementia, were less able to cope with PEG tubesand might have a tendency to pull them out if not constantly supervised by nurses. Such patients wouldbe more likely to be eligible for NHS funding. TheAssistant Director said that letters had been sent to alltrusts, in February 2001, emphasising that a holistic view should be taken on each individual case.Trust staff were also provided with training and support about the eligibility criteria.


8. In respect of NHS trusts, the guidance indicated the need for them to:

'• review arrangements for discharge ofpatients with continuing health or social careneeds….

'• review procedures for supplying appropriateinformation to patients and their families andany carers….

'• ensure appropriate front line staff are fullyconversant with the review procedure as outlined in this guidance, and with eligibility criteria.'

9. In further guidance, EL(96)8, in February1996 the Department of Health said:

'….It will be important that eligibility criteria do notoperate over restrictively and match the conditionslaid out in the national guidance. Monitoring [ofauthorities' criteria] raised a number of points whereeligibility criteria could be applied in a way which wasnot in line with national guidance:….

• an over reliance on the needs of a patientfor specialist medical supervision indetermining eligibility for continuing in-patient care. There will be a limited number of cases, in particular involving patientsnot under the care of a consultant withspecialist responsibility for continuing care,where the complexity or intensity of theirnursing or other clinical needs may mean that they should be eligible for continuing in-patient care even though they no longerrequire frequent specialist medical supervision.This issue was identified by the Health Service Commissioner in his report on theLeeds case and eligibility criteria should not be applied in a way to rigidly exclude suchcases.'

10. In August 1999 the Department of Healthissued further guidance on continuing health care in acircular HSC 1999/180. This was in response to aCourt of Appeal judgment in the case R v. North andEast Devon Health Authority ex parte Coughlan (theCoughlan case). Miss Coughlan was described in thejudgment as tetraplegic, doubly incontinent, requiringregular catheterisation, and with difficulty in breathing. The judgment summarised its conclusionsas follows:

'(a) The NHS does not have sole responsibility fornursing care. Nursing care for a chronically sick person may in appropriate cases be provided by a

local authority as a social service and the patient maybe liable to meet the cost of that care according to thepatient's needs…. Whether it was unlawful [to transfer responsibility for the patient's general nursing care to the local authority] depends, generally,on whether the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a dutyto provide and (ii) of a nature which it can be expectedthat an authority whose primary responsibility is toprovide social services can be expected to provide.Miss Coughlan needed services of a wholly differentcategory….'

11. The Department's guidance included in itsdescription of the judgment:


'(c) ….HSG(95)8…. is lawful, although could be clearer.


(i) merely incidental to the provision of theaccommodation which a local authority is undera duty to provide to persons to whom section21 refers; and

(ii) of a nature which it can be expected than anauthority whose primary responsibility is toprovide social services can be expected to provide.



12. Authorities were advised to satisfy themselves that their continuing and community carepolicies and eligibility criteria were in line with the

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placed in a nursing home. This was based on the factthat she did not require constant supervision of theconsultant and her nursing needs did not require specialist nursing/clinical intervention and could beprovided by staff in a nursing home setting.

'[Mrs N's] daily living needs were assessed by the multidisciplinary team and were documented by [the]Social Worker in the Social Service Assessment Sheet,[copy provided].

'From the feedback provided at the MDT and entriesmade in the medical notes, it was evident that [Mrs N] had made very little or no improvementthroughout her stay on the ward. This fact is furthersupported by the entry made in the nursing records on3rd May where it states that [Mrs N] was not veryresponsive to therapy.

'A discussion between [the lead Consultant - Stroke(the lead Consultant)] and [Father N] took place wherehe asked her about the possibility of moving his mother to a stroke unit in [a hospital in Kent]. It isnoted that [the lead Consultant] suggested it wouldnot be in his mother's best interest to transfer toanother stroke unit in view of her limited potential forfuture rehabilitation.

'As [Father N] was returning home the following day[the lead Consultant] suggested it would be moreappropriate to look at nursing homes in the Kent areaas this would be more suited to her needs, he agreedto do this. On the 8th May [Father N] contacted theward to inform them he had found a placement to suithis parents. The records on this date show that [FatherN] agreed to discuss the placement with his parents'Social Workers….

'It is clear that from the entries in the nursing notesdated 10th May up to her discharge and from theSocial Worker's information document that [Father N]wished to secure funding for his mother's continuingcare.

'The nursing staff explained that funding for NHS continuing care was not allocated by the nursing teamand suggested that [Father N] discuss the issue offunding with the Social Worker. The nursing staff madeevery effort to assist [Father N] and liaise with theSocial Worker leaving a message on her answer phoneon 10th May 2000. [The Social Worker]contacted the ward later that day and it is noted thatshe informed the staff that although she was [Mr N's]Social Worker, funding had been discussed with[Father N] for his parents and that they were self-funding. Please see the written entries in the case

information sheet within the Bolton Social Servicesassessment document to support this statement,[note: a copy was provided].

'I understand that [Father N] thought that his mothershould be funded because he had been informed that[the second health authority] funded patients for nursing home care who have had dense strokes and[are] on a PEG feeding regime. The explanation givento [Father N] from Social Services is summarised by[Mrs N's social worker]….

'In summary, it is clear that [Mrs N] had complex careneeds. However those care needs did not meet theWigan & Bolton Health Authority Eligibility Criteria forContinuing Care. [Mrs N] was initially under the careof [the Consultant Physician], however, she was transferred to the care of [the lead Consultant] on hertransfer to the stroke ward. [The ConsultantPhysician] provided cover for [the lead Consultant's]leave (which was at the time of [Mrs N's] assessmentagainst the eligibility for continuing care criteria) continuity of care was therefore maintained. It isimportant to note that [the lead Consultant] was alsoin agreement that [Mrs N] did not fulfil the eligibilitycriteria for continuing care. The clinical team madeevery effort to meet the needs of [Mrs N] and her son.'

21. The Consultant Physician confirmed thatan entry dated 17 May 2000 in the medical recordswas his record of the multi-disciplinary team meeting.It was his normal practice to record such meetings inthe medical notes. The notes showed that he wasaware at that time that the second health authoritywould have funded Mrs N's care. The notes alsoshowed that the Physiotherapist and the OccupationalTherapist were present at the meeting. There wouldalso have been a nurse present; but the ConsultantPhysician thought the Social Worker had not beenavailable that day. Although the Trust's formalresponse and the checklist indicated that the SocialWorker and others were present, the ConsultantPhysician explained that his understanding was thatthe tick boxes on the form were to show who wasinvolved in the patient's care and overall assessment,not just who was present on the day of the multi-disciplinary meeting.

22. The Consultant Physician said that, since thereceipt of Father N's complaint, he had given considerable thought to the interpretation of theHealth Authority's eligibility criteria. Until Father Nhad told him that the second health authority wouldfund NHS continuing care for his mother he was notaware that different areas applied the eligibility criteria differently. He was very concerned about


judgment and existing guidance, taking further legaladvice where necessary. If they revised their criteriathey should consider what action they needed to taketo reassess service users against the revised criteria.

13. In June 2001 the Department of Healthissued guidance in a circular HSC 2001/015, on thenew arrangements for continuing health care embodied in the Health and Social Care Act 2001. Thisrequired health authorities to comply with the guidance by October 2001 and, working in conjunctionwith Primary Care Trusts (PCTs), agree joint eligibilitycriteria and set out their respective responsibilitiesfor meeting continuing health and social care needs by1 March 2002. A further circular - HSC 2002/001, wasissued in January 2002 (after the events complainedabout) which provided guidance on the implementation of the single assessment process forolder people, as part of the National ServiceFramework for Older People.

Health Authority policy and criteria14. The Health Authority's 'Policy for MeetingContinuing Health Care Needs', (the policy) revised inJuly 1997, defined continuing in-patient care as: '….health care which is provided on a long-term basisor on a short-term basis under the direction of a consultant'. The policy said that such care would, inmost cases, be provided in a hospital setting, but'….may in a small number of cases be provided within a nursing home environment where the equivalent level of specialist health care will be given'.The policy listed four groups of people who were eligible for continuing in-patient care, including:

'a) Patients for whom the complexity or intensity oftheir medical, nursing care or other clinical care….requires the regular…. supervision of a consultant,specialist nurse or other NHS member of the multidisciplinary team.

'b) Patients who require routinely the use of specialisthealth care equipment or treatments which requirethe supervision of specialist NHS staff.

'c) Patients who have a rapidly degenerating or unstable condition which means that they will requirespecialist medical or nursing supervision.'

15. On 15 February 2001 (after Mrs N's case hadbeen reviewed) the Health Authority's AssistantDirector of Service Strategy (the Assistant Director)wrote to staff in various trusts, including the Trust'sDirector of Service Development (the Director). Theletter set out a broader framework for establishing

that consideration of continuing care was fullyaddressed. It included detailed advice on the type ofcriteria to be applied in respect of the patient's physical and mental condition. The letter referred tothe Coughlan case (paragraph 10) and included:

'In summary, the Court of Appeal stated that a HealthAuthority is obliged to provide health care servicesunless (a) they can legitimately be regarded as incidental to or ancillary to accommodation services;or (b) they are of a nature which one can expect SocialServices to provide. The overriding test is whether theneed is primarily a health care need.'

Sequence of events16. I set out now, in greater detail, the sequenceof events in which the Trust and the Health Authoritywere involved with Mrs N's care, and her son's subsequent complaint about the funding of her care:

4 April 2000 - Mrs N collapsed at home, and wastaken by ambulance to a hospital, which is managedby the Trust. She was assessed later that evening ashaving suffered a dense, right-sided stroke, and was admitted to a ward.

Mrs N remained in hospital until she was well enoughto have a PEG feeding tube inserted (a naso-gastrictube was used in the interim). The PEG insertionappears to have taken place some time between 27 April and 3 May.

14 May - A Social Services assessment was carriedout which concluded that Mrs N needed 24 hoursupervised care in a nursing home.

17 May - A checklist for eligibility for NHS continuingcare was completed by the Consultant Physician,which recorded that Mrs N did not meet any of the eligibility criteria.

23 May - Father N wrote to the Health Authorityrequesting a review of the multi-disciplinary assessment.

2 June - The Assistant Director wrote to Father Ntelling him that the chairman of the review panel (theChairman) had decided that the decision not to fundMrs N's continuing care was appropriate. On the sameday the Assistant Director wrote to the Trust, withcopies to Father N and Social Services, drawing theirattention to aspects of the case which it was considered could have been handled with greater sensitivity. The letter included:

0102920699 / sig17 / plateB


been made aware of this by the excellent practice of[the second health authority], who are implementingthe criteria for Continuing Care and spending thefunds set aside for this purpose….'

18. In putting his complaint to me, Father Nwrote:

'We must pay for care in Bolton. In Kent, my mother'scondition would make her eligible for continuingcare…. [The Health Authority] have confined themselves to the issue of whether the correct discharge procedure has been carried out. My complaint centres on the injustice of not providing aservice that another Health Authority does provide.This is making a mockery of the principle of a NationalHealth Service.'

19. In a later letter he also wrote: 'I wish also torepeat that the heart of my complaint is the fact ofvarying criteria for continuing care between healthauthorities, operating within a National HealthService, which of necessity should give equal serviceacross the country. I should also want to maintainthat the criteria for continuing care in the Wigan andBolton Health Authority are not applied in the sameway as in Kent….'.

Trust evidence20. At the start of the investigation the Trust'sChief Executive provided a written response to thecomplaint. I set out below most of that letter:

'In response to your request for our comments relating to the Trust's assessment for eligibility forNHS continuing care, I feel a brief summary of [Mrs N's] care may be helpful.

'[Mrs N] was admitted to [a hospital which is managedby the Trust] on 5th April 2000 after collapsing athome. Prior to her admission [Mrs N] had been welland was the main carer for her husband who sufferedfrom Parkinson's disease. The medical assessment atthis time indicated that [Mrs N] had suffered a densestroke with marked right-sided weakness and that shewas aphasic [suffering a disorder of the languagefunction] and therefore unable to communicate. Shewas incontinent of urine and was catheterised. Theplan was to transfer [Mrs N] to the ward for furthermonitoring of her condition. A request was sent to thestroke team for assessment and a CT brain scan [computerised scan of the brain] ordered.

'[Mrs N] was assessed for admission to the strokeward on 12th April and was transferred to the wardlater that day. This ward is dedicated to the

rehabilitation of stroke patients and the team consistsof medical and nursing staff, physiotherapists, occupational therapists and language therapists.Other professionals such as dieticians, and socialworkers provide input to the planned care for patientson this ward.

'[Mrs N's] needs [were] assessed by the team and aresummarised in Appendix I [attached as an annex tothis report]. It is our practice to begin patient discharge planning soon after admission to allow therequired time for the ongoing assessment of thepatient and to ensure that all relevant parties areinvolved in discussions surrounding patient careneeds.

'On reviewing [Mrs N's] records and through discussions with staff, there is clear documented evidence that multidisciplinary and multiagency communication took place throughout her admission.

'Weekly multidisciplinary team meetings (MDT) takeplace on the unit in order to review patients' ongoingcare and to discuss future care arrangements. Theseare working meetings where a number of patients arediscussed. It is not our usual practice to invite carersto these meetings. [Father N] was in regular contactwith the ward and the staff thought that dischargecommunications were good and he was kept wellinformed of his mother's progress. We recognise thatit may have been helpful to include [Father N] in thesedecision making processes.

'In [Mrs N's] case consideration was given to her husband's ongoing needs and those of her son [Father N], who was anxious that his parents shouldbe moved to Margate to live near him.

'These MDTs are well established on the wards andare attended by all disciplines involved in the patient'scare and are summarised in the nursing communication records.

'At the meeting held on the 17th May the followingstaff were present [the Consultant Physician, a StaffNurse, a Physiotherapist, an Occupational Therapist, aSocial Worker, and a Speech Therapist]…. The teamdiscussed [Mrs N's] eligibility for NHS continuing carein line with Wigan and Bolton Health Authority policyand eligibility criteria. The checklist form was completed by [the Consultant Physician] in collaboration with the other team members [copy provided].

'It was agreed by all disciplines that [Mrs N] did notrequire continuing in-patient care and would be best


'There appears to have been collusion by staff in processing [Mrs N's] discharge to Kent in line with[Father N's] wishes. It might have been better if, at anearlier stage, a clearly defined multi disciplinary meeting had been called with consideration given tofuture care, including NHS in-patient care. The outcome of such a meeting including completion of thecheck list could have been recorded before moving onto the next stage of discharge.'

12 June - Mrs N was discharged to a nursing homein Kent.

28 June - Father N complained to the Chief Executiveof the Health Authority about the decision by Truststaff that his mother was not eligible for funding forcontinuing care, on the basis that she would have beenfunded by the second health authority.

26 July - The Health Authority Deputy Chief Executivereplied. He clarified the earlier letter of 2 June. Hetold Father N that the Chairman had decided not toconvene a continuing care review panel because hehad decided that the correct procedures had been followed: they had confirmed that Mrs N did notrequire continuing NHS in-patient care.

27 July - Mrs N was assessed by a consultant physician in Kent (the second Consultant), who wrotea letter to Mrs N's new GP which included the following:

'… on arrival from [the hospital] with a PEG tube insitu she had sacral pressure sores and an ankle pressure sore which has healed with the good careprovided. She is currently being nursed on a pressure-relieving mattress and with a Waterlowscore of 20 [indicating a high propensity for pressuresores] this should continue.

'The lady is doubly incontinent and need hoisting totransfer. She has contractures on her right side,which was affected by the hemiplegia [paralysis ofone side of the body]. Tone on the left side wasremarkably normal and I am not convinced that theprevious diagnosis of Parkinsonism [a progressivedisease affecting the brain] actually was not pseudo-Parkinsonism due to multiple cerebral infarct pathology [strokes]. She is being fed by a PEG tubeand this will need to continue. All the pressure areaswere intact. She is deaf…. She is also partially sighted. She is dysphasic [unable to communicate inspeech and/or writing] and could not meaningfullycommunicate with me. It is doubtful that a hearing aidwill actually improve communication in practice. Thereis no potential for rehabilitation and no point in furtherphysiotherapy or other assessment.

'She will need to have review by our dietician and inapproximately four months time will need replacement of the PEG tube, which should bearranged through our endoscopy unit.… With regardto her level of orientation it is important that she doesrecognise her son who visits most days. Also duringour examination she was able to cover herself withbedclothes moving her left arm.

'Apart from this lady's current need for enteral feedingwhich will continue in the long term, her care needscan be met by general nursing care. However, on localcriteria PEG feeding is interpreted by myself and thereview process as qualifying her for NHS continuing care….'

31 July - Father N wrote to the Deputy ChiefExecutive, rejecting the Health Authority response onthe grounds that it was unjust, and seeking a furtherreview.

9 August - The Health Authority asked the Chairmanto reconsider the request for a continuing care reviewpanel.

29 August - The Chief Executive wrote to Father N confirming that the Chairman had reviewed the caseagain, but still declined to set up a continuing carereview panel. The Chief Executive's letter said that acomparison of the Health Authority criteria with thoseof the second health authority showed little difference. The Chairman had given his opinion thatMrs N fell well outside the eligibility criteria and wasnot a marginal case

Father N's evidence17. In his letter of complaint to the HealthAuthority dated 23 May 2000, Father N wrote:

'….Asking [the Consultant Physician] on what printedcriteria he based his decision to reject her eligibilityfor Continuing In-patient Nursing Care, he replied thatit was based on his opinion that she no longerrequired the care of a Consultant. When I replied thatthe criteria were wider and included the four areas ofeligibility outlined on page 14 of [the HealthAuthority's] “Policy for Meeting Continuing HealthCare Needs” April 1997, revised July 1997, he did notseem to be aware even of these broad areas, whichinclude more than the need for a Consultant….

'I conclude that there has been a total lack of transparency vis a vis staff, patients, main carers andrelatives on the part of [the Trust] and [the HealthAuthority] with regard to the criteria for ContinuingCare, for which the NHS is responsible. I have only

Documents

NHS funding for long term care HC 399 - gov.uk...Continuing Care: NHS and Local CouncilsÕ responsibilities 28 June 2001 10 Full text of investigation reports Annex B E.208/99-00 Dorset